What is Habitual Consorting and it’s Penalties?

Habitual Consorting carries a maximum penalty of imprisonment of up to 3 years and/or a fine of up to $16,500.

Under s 93X Crimes Act 1900 (NSW), it is a criminal offence to:

  • Habitually Consort with convicted offenders, after receiving an official warning in relation to each of those convicted offenders.

This means, it is an offence to:

  • Meet with at least 2 people, who each have a criminal conviction, on at least 2 occasions; and
  • If you intentionally sought out the company of each of those people; and
  • In relation to each of those people (who have a criminal record), you were given a warning by a police officer that:
    1. The person is a convicted offender; and
    2. Consorting with him/her is an offence

Charlie Forster Wrongly Convicted of Consorting- Forster v DPP [2017] NSWSC 458

Charlie Forster grew up in the small town of Inverell, NSW. He was charged and convicted for the offence of Habitual Consorting under s 93X Crimes Act 1900 (NSW). He initially pleaded guilty, but later changed his plea to not guilty.

He was found guilty in the Local Court, however, successfully appealed to the Supreme Court. The Supreme Court held that Charlie was wrongly convicted, and it then set aside that conviction. His Charge was ultimately dismissed.

Unfortunately for Charlie, when initially convicted by the Local Court, he was sentenced to a term of 1 year imprisonment. He spent nearly 1 year in prison before he was granted Supreme Court bail and released.

See an article of Charlie in the SMH before the Supreme Court made it decision to set aside his conviction.

Why the Police Wrongly Believed Charlie Was Consorting?

On appeal, the Supreme Court set aside Charlie’s conviction, it held that the evidence established no more than a casual conversation on the street with a person Charlie knew.

The 1st incident:

A police officer, with another officer, was patrolling in Otho St, Inverell. They approached Inverell Motel, and saw Charlie, and Mr. Hayes standing near the front of the motel speaking with each other. Both Charlie and Mr. Hayes had a criminal conviction.

The police officers had the following conversations with the two men:

Police: “what’s happening fellas?”

Mr. Hayes: “Nah nothing. We’re just hangin’ out”

Police: “you know that Charlie has previously been convicted of an indictable offence. I know you know because I’ve spoken to you both about this a few times.”

Mr. Hayes: “Yeach. Of Course I know him. I live with him.”

Police: “Charlie, you know Mr. Hayes been convicted of indictable offences. I’m telling you formally that if you habitually hang out with each other, you may be committing the offence of consorting.”

Charlie: “What’s Consorting?”

Police: “it means people with criminal convictions are not allowed to associate with each other. If your caught a certain number of times you get charges.”

Charlie: “That’s fucked. We live together.”

Police: “I’m now giving you a direction to separate immediately and move on.”

The 2nd Incident:

The second incident occurred about 20 minutes later.

The same two police officers were patrolling on Byron St, Inverell. They saw Charlie engaging conversation with Mr. Morris who has a criminal conviction.

The police officers approached Charlie and Mr. Morris, and had the following conversation with the two men:

Charlie: “what now?”

Police: “the same thing goes for hanging around Mr. Morris. You know he’s been convicted of criminal offences before.”

Charlie: “yeah I know. He was in Gaol.”

Police: well, I told you only 10 minutes ago that you are not to associate with convicted criminals. So again, I’m telling you both have criminal convictions, and it’s an offence to habitually associate with convicted criminals. You can consider this another consorting booking.”

Charlie: “You just fuckin’ gave me one 10 minutes ago.”

Police: “If you keep swearing at me, I’ll write you a ticket too. There’s no time limit between bookings, Charlie. If I leave here and see you around the corner having another char with Mr. Hayes or Mr. Morris, or any other convicted criminal, you’ll get a 3rd booking.”

Charlie: “I’m gonna make a complaint.”

Police: “That’s up to you, It doesn’t change the fact that you are consorting. I’m giving you both directions to separate and move on from here.”

The 3rd Incident:

The 3rd incident occurred about midnight that same date. Four different police officer’s saw Charlie walking on Byron St, Inverell with a group of men including Mr. Hayes, Mr. Morris, and Mr. Case who each had criminal convictions.

Different police officers then approached the men who, by that time, were just sitting outside the Tattersall’s Hotel. Police then had the following conversation:

Police: “What are you guys doing tonight?”

Charlie: “We are out havin’ a drink. Why?”

Police: “have you been spoken to about consorting?”

Charlie: “yeah, but we aren’t doing anything.”

Police: “your consorting so your all getting individual bookings for consorting. You have all been convicted of an indictable offence. You can’t hang out, or you will be charged.”

Charlie: “Come on chief, we aren’t doing anything wrong. Were just having a fucking drink.”

Police: “You can’t hang around together because you have all been convicted with an indictable offence. Do you understand that you have all now been given a booking for consorting?”

Charlie: “Yeah chief we understand. We have known each other since we were 4. Because we have been to gaol we can’t hang around each other. That’s wrong chief.”

Police: “yes that’s exactly what it means.”

The 4th and Final Incident:

The last incident occurred about 1 month later.

About midday, police were patrolling on Otho St, Inverell. Police saw Charlie, and Mr. Case standing on a side footpath, before walking away from each other upon seeing police. Again, Mr. Case had a criminal conviction.

Police approached both men, Charlie and Mr. Case. At this time, both had returned to each other and continued to conversate.

Police gave both Charlie and Mr. Case an official warning for consorting.

The Supreme Court held that casual encounters do not constitute “consorting”. Therefore, the incidents 1, 2, and 4 were no more than casual conversations on the street with person’s Charlie knew. Those 3 encounters on the street observed by the police were incapable of amounting to “consorting”. There needs to be some evidence supporting the view that Charlie intended to seek the company of those men. The evidence here did not establish this.

What Doesn’t Amount to “Consorting”?

Key points to take note of include:

  • A chance encounter is not seen as “habitual consorting”.
  • To constitute “consorting”, there need not be a purpose established.
  • Casual meetings with an acquaintance does not constitute “consorting”.

Defences to the Charge of “Consorting”

It is a defence to the offence of consorting if you can satisfy the Court, on the balance of probabilities, that you consorted in any one of the following circumstances:

  • Consorting with family members;
  • Consorting in the course of lawful employment or lawful operation of a business;
  • Consorting in the course of training or education;
  • Consorting in the course of a health service;
  • Consorting in the course of legal advice;
  • Consorting that occurs in lawful custody or in the course of complying with a court order.

The above defences to consorting can be found in section 93Y Crimes Act 1900 (NSW).

If any of the above defences apply to you, you will be not guilty to a charge of Consorting under section 93X Crimes Act.

Published on 19/11/2017

AUTHOR Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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