Confiscation of proceeds of crime
The Confiscation of Proceeds of Crime Act 1989 empowers a court to make orders for the confiscation of property derived from or used to commit a ‘serious offence’ (‘serious offence is defined in the Act). It also includes interim mechanisms for the preservation of property to prevent it from being disposed of prior to the making of a confiscation order.
Under the Act a person or persons can be deprived of the proceeds of and benefits derived from the committing of a criminal offence and the forfeiture of any property used in or in connection with the committing of a criminal offence. Property used in or in connection with a criminal offence is referred to as ‘tainted property’. Tainted property is defined as:
- property used in or in connection with the commission of a serious criminal offence, for example a vehicle used to transport illegal drugs could be considered to be tainted property;
- property obtained as a result of committing a serious criminal offence, for example property taken during a crime, the proceeds of sale of stolen property, or items that have been purchased using the proceeds of sale of stolen property;
- property obtained for the depiction of a serious criminal offence, for example paid media interviews, or book royalties.
To establish that property is ‘tainted’ it must be established that the property was not just at the location of a serious crime but was used in some way to assist the committing of the crime.
A freezing notice can be issued as an interim measure, prior to making a confiscation order, to seize tainted property. A freezing notice has the effect of preventing specific property from being disposed of or dealt with pending an application to the court for confirmation of the notice. The property subject to the freezing notice is to be held in the custody of a specified person such as the Commissioner of Police. Contravention of a freezing notice is an offence under s 42O of the Act.
The following types of confiscation orders are available under the Act:
- Forfeiture order
An application for a forfeiture order can be made when the defendant is convicted of a serious offence: s 18. The order has the effect that specified property is forfeited to and vests in the State (subject to any charge, encumbrance or registered interest to which the property was subject at the time): s 19. The State may take possession of the property if it has not already done so, and may dispose of or otherwise deal with it subject to certain limitations in s 19.
- Pecuniary penalty order
An application for a pecuniary penalty order can be made when the defendant is convicted of a serious offence other than a drug trafficking offence (see below). Such an order requires the defendant to pay a pecuniary penalty to the State in the amount assessed by the court as being the value of the benefits derived by the person from the commission of the offence: s 24.
- Drug proceeds order
An application for a drug proceeds order may be made when the defendant is convicted of a drug trafficking offence: s 29. The court is required to determine whether the defendant has derived a benefit in connection with drug trafficking, and if so assess the value of the benefit and order the defendant to pay the State a pecuniary penalty in that amount. Currently, the only offence within the definition of “drug trafficking offence” in s 4 that may be prosecuted in the Local Court is possession of precursors for the manufacture or production of prohibited drugs under s 24A Drug Misuse and Trafficking Act 1985.
All proceeds confiscated under the Confiscation of proceeds of Crime Act are directed into the Victims Support Fund.