Conspiracy
[65-300] Summary of relevant considerations
[65-310] Introduction
The nub of a common law conspiracy offence is an agreement between two or more persons to commit an unlawful act: see discussion and authorities referred to in the Criminal Trial Courts Bench Book at [5-5300], [11-000]. Statutory offences of conspiracy, such as s 11.5(1) Criminal Code (Cth), are based on the common law but are subject to modification: The Queen v LK (2010) 241 CLR 177 at [107]. See also [65-420] Commonwealth conspiracy offences. In this chapter, “substantive offence” refers to the offence the co-conspirators agree to commit.
One distinction between common law and statutory conspiracy offences is there is no fixed maximum penalty for common law offences. Courts have developed principles to provide a sentencing benchmark for common law offences: see [65-320] Sentencing principles for a conspiracy offence.
Although the essence of a conspiracy offence (both common law and statutory) is the agreement, it is a continuous crime, extending over the period of agreement until it is interrupted or the objective of the agreement is achieved: R v Masters (1992) 26 NSWLR 450 at 458. Evidence of the conspiracy’s implementation will often constitute “a substantial part of the evidence from which the existence of the agreement… is to be inferred”: R v Savvas (No 2) (1991) 58 A Crim R 174 at 176. Any such evidence may also be relevant to the assessment of the offence’s objective seriousness on sentence, along with other factors such as the offender’s role: see [65-340] Assessing the objective seriousness of a conspiracy offence. A court must also consider an offender’s subjective circumstances and moral culpability for the offence: see generally [10-600] Subjective matters and [11-500] Moral culpability.
[65-320] General sentencing principles for a conspiracy offence
Yardstick principle
Generally, an offence’s maximum penalty and any standard non-parole period (SNPP) are key sentencing legislative yardsticks: Markarian v The Queen (2005) 228 CLR 357 at [31]; Muldrock v The Queen (2011) 244 CLR 120 at [27].
At common law, the maximum penalty for a conspiracy is “at large”, subject only to the requirement the sentence not be excessive: Pettersen v R [2013] NSWCCA 20 at [8]. Further, the SNPP provisions do not apply to offenders charged with common law conspiracy, even when the substantive offence carries a SNPP: SAT v R [2009] NSWCCA 172 at [51]. Where a court erroneously proceeds on the basis a SNPP applies, this may result in the imposition of a manifestly excessive sentence: Diesing v R [2007] NSWCCA 326 at [55], [58]–[60].
A court should have regard to the maximum penalty for the substantive offence as a yardstick against which to assess the objective seriousness of a common law conspiracy: The Queen v Hoar (1981) 148 CLR 32 at [21]; Vella v R [2015] NSWCCA 148 at [143]. Generally, the penalty for the conspiracy should not exceed that provided for the substantive offence, however in exceptional cases, “the element of concert may justify a more severe penalty for conspiracy than for the substantive offence”: The Queen v Hoar at [16].
Where the conspiracy is to commit a number of substantive offences, the court should have regard to the maximum penalty that can be imposed with respect to each of those offences: The Queen v Hoar at [21]; see also Thangavelautham v R [2016] NSWCCA 141 where the Court rejected the offender’s submission that the sentence for the conspiracy, which was detected prior to its fulfilment, did not need to reflect the multiplicity of substantive offences comprehended by it: [81], [84].
De Simoni and totality principles
An offender should only be punished for an offence for which they have been convicted (in this context, the conspiracy offence), not for an offence for which they have not been convicted (the substantive offence(s): Savvas v The Queen (1995) 183 CLR 1 at [9], [11]; [1-500] De Simoni principle.
Further, an offender cannot be punished twice for the same conduct: The Queen v Hoar (1981) 148 CLR 32 at [15]. In The Queen v Hoar, the Court was critical that the offender, who was sentenced for (successfully) conspiring to commit offences against the Fisheries Ordinance 1965 (NT), was also subject to pending charges for the substantive offences: [15]–[20]. However, in some cases, substantive charges may be brought in the alternative to a conspiracy charge: see for example Dickson v R [2016] NSWCCA 105 at [3].
Where an offender is being sentenced for separate but overlapping offences, the sentence imposed must reflect the totality of the conduct: see general discussion of the principle of totality in [8-230] Structuring sentences of imprisonment. For example, Dickson v R involved a Crown appeal against the adequacy of sentences imposed for two related conspiracies of taxation fraud (Criminal Code (Cth), s 135.4(5)) and dealing with the proceeds of crime (Criminal Code, s 11.5(1) and s 400.3(1)). The Court allowed the appeal in part because the sentences, which were largely concurrent, failed to reflect the totality of the offending. In particular, the serious proceeds of crimes conspiracy could not be considered on the basis it involved “merely gaining access” to the funds obtained in the taxation fraud conspiracy: [205]–[206].
[65-340] Assessing the objective seriousness of a conspiracy offence
The seriousness of a conspiracy offence will partly depend on the type of substantive offence comprehended by the conspiracy, as well as its breadth and sophistication. A court is also entitled to make factual findings in relation to what was actually done in furtherance of the conspiracy (overt acts) because it bears upon the “content and duration and reality of the conspiracy”: Savvas v The Queen (1995) 183 CLR 1 at [11] citing R v Kane (1975) VR 658 at 661; Ansari v R (2007) 70 NSWLR 89 at [133]. For example, in Dickson v R [2016] NSWCCA 105 the Court accepted the taxation conspiracy was objectively serious in light of its scale, complexity and the planning involved, as well as the manner and duration over which it was “pursued and implemented”: [166]–[167]; and [1-400] Fact finding at sentence.
A court may take into account that the object of the conspiracy has been achieved, but cannot sentence the offender for the substantive offence: Savvas v The Queen at [18]–[20]. The offender in that matter was sentenced for Commonwealth and State conspiracies to import and supply a large quantity of heroin, and the High Court held the fact heroin was imported and distributed was relevant to sentence: [17]. However, the High Court observed a court must walk a “fine” line to ensure an offender is not sentenced for the substantive offences, including avoiding references to the overt acts as “further offences committed by the offender”: [16]–[18]. See discussion of De Simoni principle above in [65-320] General sentencing principles for a conspiracy offence.
A conspiracy may be serious even if it is not implemented. For example in Thangavelautham v R [2016] NSWCCA 141, which involved a common law conspiracy to defraud, the conspiracy’s object was to obtain credit card details of about 1,000 individuals via the installation of a compromised EFTPOS machine. The Court found the foiling of the conspiracy did not lessen the seriousness of “what was intended to be achieved”: [84]. Also, in Ibrahim v R [2019] NSWCCA 188, which involved a common law conspiracy to supply firearms, the fact the conspiracy was unsuccessful did not mean the offence was not serious, and did not impact on the need for the sentence to reflect general and personal deterrence: [73].
Similarly, for a conspiracy to do an act in preparation for a terrorist act (Criminal Code (Cth), ss 11.5(1), 101.6(1)) a lack of proximity to the planned act may not lessen the conspiracy’s seriousness: see “Act in preparation for or planning a terrorist act (s 101.6)” in [67-060] Terrorism offences.
Role of the offender
A court is entitled to have regard to the offender’s role in the conspiracy when assessing the objective gravity of their offending: Savvas v The Queen at [20]. Consideration must be given to “a complex tapestry” of the offender’s physical acts in the context of the “inter-connection between the various participants, and the organisational nature of a conspiracy”: Tyler v R [2007] NSWCCA 247 at [83]–[84]. For a more detailed discussion of Tyler v R, which involved conspiring to import a commercial quantity of cocaine (Customs Act 1901 (Cth), s 233B(1)(a)(iii) (rep)), see “Role of offender and level of participation” in [65-130] Objective factors relevant to all Commonweath drug offences. The principles in Tyler v R have been found to be applicable to conspiracy offences contrary to the Drug Misuse and Trafficking Act 1985: see [19-855] Section 26 — Conspiracy offence.
The offender’s role will be relevant to the assessment of the offending in any conspiracy where the co-conspirators have different roles in a hierarchy and different gains to be made. For example, see Dickson v R at [167], [185] which involved taxation fraud and money laundering conspiracies; Thangavelautham v R [2016] NSWCCA 141 at [84], which involved a common law conspiracy to defraud; and Ibrahim v R [2019] NSWCCA 188 at [72], a common law conspiracy to supply firearms. These authorities are all discussed in more detail above.
When co-conspirators are sentenced for their role in the conspiracy, consideration may also need to be given to the parity principle: see [12-500] Parity.
That an offender enters into an agreement but makes efforts to abandon the conspiracy, including not participating in its implementation, may be taken into account in mitigation on sentence: R v Wright (unrep, 8/7/97, NSWCCA); Savvas v The Queen at [17]. See also s 11.5(5) of the Criminal Code (Cth), which provides a “defence” of withdrawal in some circumstances for a Commonwealth conspiracy offence contrary to s 11.5(1): The Queen v LK (2010) 241 CLR 177 at [136].
[65-400] State conspiracy offences
In NSW, the common law offence of conspiracy generally applies, unless statute provides otherwise. As discussed above in [65-320] General sentencing principles for a conspiracy offence, common law conspiracy offences do not carry a fixed maximum penalty or standard non-parole period.
State statutory conspiracy offences include:
[65-420] Commonwealth conspiracy offences
Commonwealth conspiracy offences are provided for by statute, and are generally governed by s 11.5 Criminal Code (Cth), although there are some specific Commonwealth conspiracy offences, including:
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conspiracy to pervert the course of justice offences: Crimes Act 1914 (Cth), ss 41 and 42; and
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conspiracy to defraud the Commonwealth: Criminal Code (Cth), s 135.4 (previously Crimes Act 1914 (Cth) ss 29D, 86 (rep)); see [20-065] Types of Commonwealth fraud.
Section 11.5(1) provides a person who conspires with another to commit an offence punishable by 12 months’ imprisonment or more, or a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence had been committed. The words “conspires” and “conspiracy” are to be understood as fixed by the common law, but the offence has been modified by statute. For example, the offence only applies to an agreement to commit a non-trivial offence (as opposed to an “unlawful act”): The Queen v LK (2010) 241 CLR 177 at [107], [141]. See also the discussion of s 11.5 in the Criminal Trial Courts Bench Book at [11-000].
For a discussion of Commonwealth conspiracy offences against s 11.5 Criminal Code, and relevant authorities, see:
For a discussion of the offence of conspiring to bribe a foreign official (Criminal Code (Cth), ss 11.5(1), 70.2(5) (rep)), and relevant authorities, see The King v Jacobs Group (Australia) Pty Ltd [2023] HCA 23 and Elomar v R; Elomar v R [2018] NSWCCA 224.