What is Money Laundering? Am I Guilty If I Make an Innocent Mistake?

Unfortunately, innocent people can sometimes be caught up in the unlawful schemes of others.

This is particularly true online – where get-rich-quick schemes that promise to make you millions are everywhere.

Most of them are of course scams, and some are part of complex criminal enterprises.

You may also have come across direct emails or even received phone calls from scammers claiming to make you rich in no time at all.

These people are usually vague about their schemes – but brazen in their requests for your bank account details or requests for you to transfer money to them.

But some scams can do a lot more than just taking your hard-earned money – they can involve you in organised crime, even if you have no idea that this is happening.

And it is certainly possible that online transfers you undertake for people you don’t know are a form of money laundering.

What is money laundering?

Money laundering is a very important component of organised criminal activity.

Under section 193B of the Crimes Act 1900 (NSW), there are three different categories of money laundering:

1. Knowingly dealing with the proceeds of crime and attempting to conceal it; subsection 1 (maximum penalty is 20 years imprisonment,
2. Knowingly dealing with the proceeds of crime – but not necessarily trying to conceal it; subsection 2 (maximum penalty is 15 years imprisonment), and
3. Dealing with the proceeds of crime and being reckless to the possibility that you were doing so; subsection 3 (maximum penalty is 10 years imprisonment)

Money laundering is also a federal offence. Under the Commonwealth Crimes Act, money laundering occurs if a person:

1. Deals with money or property which is (or they believe it to be) proceeds of crime; or
2. Intends (or is reckless to the possibility) that the property will become an instrument in crime

This means it is possible for you to get into trouble even if you don’t have any concrete proof that you were dealing with the proceeds of crime.

Recklessness means that you are aware of a substantial risk that circumstances exist (or a result will occur) but you decide to go ahead anyway.

All of the surrounding circumstances will be taken into account when deciding whether you had knowledge or were reckless.

And with Commonwealth offences, your state of mind is directly linked to the maximum penalty for the offence.

If, for example, you had the intention of dealing with proceeds of crime, the maximum penalty is 25 years imprisonment.

But for recklessness the maximum penalty is 12 years.

Recklessness is not as serious as actual intent, but it is still enough to make you criminally liable.

If you believe you may have been inadvertently been caught in a money-laundering scam, the best thing to do is to report it to the ScamWatch immediately.

I am suspected of money laundering. What should I do?

The best thing to do is to speak to a specialist criminal lawyer immediately, especially before participating in a police interview.

An experienced lawyer will be able to advise you about whether you may have committed an offence, the nature and seriousness of any offence, your options and the best way forward.

In order for you to be found guilty of money laundering, the prosecution must prove certain ingredients, also known as ‘essential elements’.

For example, to establish a charge under section 193B(1) the prosecution must prove all of the following elements beyond reasonable doubt:

1. That you (rather than someone else)
2. Dealt with (ie received, possessed, concealed, disposed of, brought to NSW or transacted)
3. Proceeds of crime (ie the money or goods must in fact be proceeds of crime)
4. Knowing that it was proceeds of crime (knowledge must be proved), and
5. Intending to conceal that it was proceeds of crime.

If the prosecution cannot prove any of those ingredients beyond reasonable doubt, you must be found not guilty.

An experienced criminal defence lawyer will carefully examine the prosecution case for any weaknesses.

They will speak with you at length and gather any materials that might raise doubt about the prosecution case.

Where there is a weakness(es), they will push for the case to be dropped even before it reaches a defended hearing or jury trial.

If the case goes all the way, they will fight for the charges to be thrown out of court.

If the prosecution case is relatively strong, a good lawyer may be able to negotiate for the charges to be downgraded something less serious, such as:

• ‘Dealing with proceeds suspected of being proceeds of crime’ under section 193C which carries a maximum penalty of 2 years imprisonment, or even
• ‘Persons unlawfully in possession of property’ under section 527C, which is also known as ‘goods in custody’ and generally carries a maximum penalty of 6 months imprisonment, or 12 months for a motor vehicle.

If you do wish to plead guilty, an experienced lawyer will prepare your case thoroughly and present it persuasively in court, so that you achieve the best possible outcome.

If you are charged with a money laundering or goods in custody offence, be sure to contact a specialist criminal lawyer before speaking to police.

They may even be able to protect you against charges being pressed in the first place.