NSW Crime Commission Proceedings
NSW Crime Commission Proceedings
In broad terms, the Confiscation of Proceeds of Crime Act 1989 empowers a court, upon the conviction of a defendant, to make orders for the confiscation of property derived from or used to commit a “serious offence”. 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.
This includes property that was:
- used in or in connection with the commission of a serious offence. An example in relation to drug offences is a vehicle used to transport drugs to the point of sale
- substantially derived or realised, whether directly or indirectly, by any person:
- from property used in or in connection with the commission of a serious offence. This may include the monetary proceeds from the sale of an item such as a vehicle used in the commission of an offence, and extends to another item purchased with that money
- as a result of the commission of a serious offence. This may include property taken in the commission of an offence, the proceeds from the sale of such property, and other items purchased with the proceeds of sale
- substantially derived or realised, whether directly or indirectly, by any person for the depiction of a serious offence or the expression of the offender’s thoughts, opinions or emotions regarding the offence in any public promotion. Examples include paid interviews that the offender gives to a news media organisation, or royalties from the sale of a book by the offender about the offence.
As an overarching principle, the mere fact that the property in question is the location where the offence was committed will not ordinarily be sufficient to result in it being tainted property. There must be some activity connected with the crime that has involved the utilisation of the property with the aim of committing or furthering the commission of the crime.
Thus, where the property is more than just the place where the offence is committed but is also an operating tool in the commission of the offence it will likely be tainted property.
A freezing notice may be sought as an interim measure prior to the making of a confiscation order where a defendant either has been or is to be charged with a serious offence, or upon the defendant’s conviction. It has the effect of directing, that specified property must not be disposed of or dealt with pending determination of an application to the court for confirmation of the notice, and 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.
An application for a forfeiture order can be made when the defendant is convicted of a serious offence. 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). 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.
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. 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.
Drug proceeds order
An application for a drug proceeds order may be made when the defendant is convicted of a drug trafficking offence. 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” that may be prosecuted in the Local Court is possession of precursors for the manufacture or production of prohibited drugs.
Consideration of “hardship” in case law
It has been noted that:
- A purpose of the Act is to cause a measure of hardship in the deprivation of property; thus, consideration of hardship requires something more than “ordinary hardship in the operation of the Act”.
- Hardship should be assessed in proportion to the offence in question. Ultimately, regard should be had to whether a forfeiture order would be severely disproportionate to the circumstances of the offence and the nature and degree of offending. If there is some disproportion, this of itself is not necessarily a reason to refuse an order in view of the intended deterrent purpose of the legislation.
- There is an “infinite variety of circumstances” that may affect the exercise of the discretion whether or not to order forfeiture, but in broad terms relevant considerations may include:
- the circumstances of the offence
- the extent to which the property was connected with the commission of the offence
- the seriousness of the offending
- the value of the property in relation to the offence
- the likely consequences of an order on the defendant and others who may be affected by it
A rebuttable presumption that property is tainted applies in instances where there is evidence before the court that the property was in the possession of the person at or immediately after the commission of the offence. If no evidence to the contrary is given, the court must presume the property was used in, or in connection with, the commission of the offence. If evidence to the contrary is given, an order must not be made unless the court is satisfied, on the balance of probabilities, that the property was used in, or in connection with, the commission of the offence.