Asset Forfeiture (NSW)
In New South Wales, the Confiscation of Proceeds of Crime Act 1989 governs the forfeiture of assets associated with criminal activity. Under this Act, certain property may be confiscated if a person is charged or convicted of an offence. This page deals with asset forfeiture in New South Wales.
Why asset forfeiture?
The Act seeks to ensure that offenders do not benefit from the proceeds of their offending and that property used in connection with offending is forfeited. To achieve this, it provides that various types of confiscation orders, including restraining orders, forfeiture orders and pecuniary penalty orders, can be made and enforced when a person is convicted of a serious offence.
Restraining orders
A restraining order is an order that prevents a party from dealing with property. The Supreme Court may make a restraining order when:
- the person who is the subject of the application has committed a serious offence
- the person has acquired the property form criminal activity
- the property was acquired as a result of a serious criminal offence
Breaching a restraining order
It is an offence under section 58L of the Victims Support and Rehabilitation Act 1996 to breach a restraining order. A person breaches a restraining order if they deal with the property that is the subject of the order in a way that is contrary to the terms of the order.
The maximum penalty for breaching a restraining order is two years imprisonment, a fine equivalent to the value of the property, or both.
Forfeiture orders
Forfeiture orders are governed by section 18 of the Confiscation of Proceeds of Crime Act 1989. A forfeiture order can be made after a conviction for a serious offence where there is reason to believe that property was derived through criminal activity.
A forfeiture order allows the Department of Public Prosecutions to seize property. It can be made either by the Supreme Court or by the District Court.
Pecuniary penalty orders
Under section 24 of the Confiscation of Proceeds of Crime Act 1989, a court may make a pecuniary penalty order. This is an order based on an assessment of the value of the benefits derived from criminal offending which orders the person to pay a penalty equal to this value.
If the person has been made subject to a forfeiture order in relation to some of the property, the amount of the pecuniary penalty order will be reduced by the amount of
The amount of a pecuniary penalty order is assessed based on a consideration of:
- the money or value of the property that came into the possession of the defendant; or
- the money or value of the property that came into the possession of another person at the request or direction of the defendant
because of the defendant having committed offences.
Drug proceeds orders
Under section 29 of the Confiscation of Proceeds of Crime Act 1989, an application may be made for a drugs proceeds order after a person has been convicted of a drug trafficking offence.
When this application is made, the court must:
- determine whether the defendant has derived a benefit from drug trafficking
- assess the value of the benefit
- order the person to pay a penalty equal to that amount.
If a forfeiture order has already been made the value of the penalty will be reduced by the amount of money or property that has already been forfeited.
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