Crypto use an aggravating factor for sentencing: Aussie court study

Offenders that use cryptocurrency for illegal activity in Australia are more likely to receive a tougher sentence.

Criminals that used cryptocurrency as part of committing a crime are more likely to receive a tougher sentence in Australian courts, a new study has found. 

The study, titled “Crime and Cryptocurrency in Australian Courts,” published on Monday in the Monash University Law Review, found that the use of cryptocurrency in criminal activity was seen as indicating an increased “degree of planning” and sophistication, leading the court to “consider general deterrence above other sentencing purposes:”

“Obtaining and using cryptocurrency for payments does require a greater degree of technical skill compared to the general population which may be unfamiliar with these payments.”

The study analyzed 103 cases presented to Australian courts between 2009 and 2020, with specific focus on 59 criminal cases and their sentencing procedures.

Not so sophisticated

Study authors Aaron Lane and Lisanne Adam found that Aussie courts broadly perceive crypto use as being indicative of “technical sophistication” and “intentional obfuscation.”

However, the pair argued that Aussie courts may be “too eager to adopt a relatively simplistic characterization” of crypto use in criminal activity, arguing that not all crypto use can signify the same level of sophistication:

“Sophistication exists on a spectrum.”

Courts must be able to differentiate between the different types of crypto transactions used by perpetrators, especially as the wider adoption of digital assets continues to grow.

Perpetrators that used centralized digital currency exchanges — where Know Your Customer (KYC) requirements mean that identification can be readily obtained — cannot be treated similarly to offenders that intentionally use anonymous noncustodial wallets or mixing services to obscure transaction data.

Cryptocurrency and digital assets have a long-standing reputation by some in the public realm as being linked to illegal activity, most likely stemming from Bitcoin’s initial association with the infamous darknet black market Silk Road.

While this negative association still looms over the digital asset industry, the amount of crypto used for illicit activity has never been lower, according to a recent report from CipherTrace.

The report estimated that illicit activity was between 0.62% and 0.65% of overall cryptocurrency activity in 2020 and has since fallen to between 0.10% and 0.15% of overall activity throughout 2021.