Criminal Proceeds Confiscation Act – Application For Pecuniary Penalty Order After Conviction

What the law says

Section 178 of the Criminal Proceeds Confiscations Act Queensland states:

1. If a person is convicted of a confiscation offence, the State may apply to the Supreme Court or the court before which the person is convicted for an order (pecuniary penalty order) requiring the person to pay to the State the amount of the benefits derived from the commission of the confiscation offence.
2. Unless the court gives leave, the application must be made within 6 months after the day the person is treated as if convicted of the offence because of section 106.
3. The State may apply to a court for a further pecuniary penalty order for the benefits derived by the person from the commission of a confiscation offence to which an application for an earlier pecuniary penalty order relates (first application) only with the Supreme Court’s leave.
4. The Supreme Court may give leave under subsection (3) only if it is satisfied-
   • (a) the benefit to which the new application relates was identified only after the first application was finally decided; or
   • (b) necessary evidence became available only after the first application was finally decided; or
   • (c) it is otherwise in the interests of justice to give the leave.

Section 179 of the Criminal Proceeds Confiscations Act Queensland states:

The State must give written notice of the application for the pecuniary penalty order to the person named in the application.

Section 182 of the Criminal Proceeds Confiscations Act Queensland states:

1. In deciding an application for a pecuniary penalty order, the court must have regard to the evidence given in any proceeding against the person for the relevant confiscation offence.
2. If-
   • (a) the application is made to the court before which the person is convicted; and
   • (b) when the application is made, the court has not passed sentence on the person for the confiscation offence; the court may defer passing sentence until it has decided the application.
3. If a person is treated as if convicted under section 106 because the offence is taken into account in sentencing the person for another offence, the reference in subsection (1) to a proceeding against the person for the offence includes a reference to the proceeding for the other offence.

Section 187 of the Criminal Proceeds Confiscations Act Queensland states:

1. When assessing the value of benefits derived by a person from the commission of a confiscation offence for the purposes of making a pecuniary penalty order against a person (relevant person), the court must have regard to the evidence before it about the following-
   • (a) the value of cash and other property that came into the possession or under the control of the relevant person or someone else at the request, or by the direction, of the relevant person, because of the commission of the offence;
   • (b) the value of any benefit provided for the relevant person or someone else at the request, or by the direction, of the relevant person because of the commission of the offence;
   • (c) if the offence consisted of the doing of an act or thing in relation to a dangerous drug or controlled substance (the illegal drug)-
     • (i)   the market value, when the offence was committed, of a dangerous drug or controlled substance similar, or substantially similar, to the illegal drug involved in the offence; and
     • (ii) the amount that was, or the range of amounts that were, ordinarily paid for the doing of a similar, or substantially similar, act or thing;
   • (d) the value of the relevant person’s property-
     • (i)   if the application relates to a single offence-before, during and after the commission of the offence; or
     • (ii) if the application relates to 2 or more offences-before, during and after the offence period;
   • (e) the relevant person’s income and expenditure-
     • (i)   if the application relates to a single offence-before, during and after the commission of the offence; or
     • (ii) if the application relates to 2 or more offences-before, during and after the offence period.
2. The court-
   • (a) may treat as the value of the benefit the value the benefit would have had if derived when the valuation is being made; and
   • (b) without limiting paragraph (a), may have regard to any decline in the purchasing power of money between the time the benefit was derived and the time the valuation is being made.

…

Section 188 of the Criminal Proceeds Confiscations Act Queensland states:

1. This section applies if-
   • (a) an application for a pecuniary penalty order relates to 1 confiscation offence; and
   • (b) at the hearing of the application, evidence is given that the value of the person’s property after the commission of the confiscation offence was more than the value of the property before the commission of the offence.
2. The court must treat the difference as the benefits derived by the person from the commission of the offence, other than to the extent the court is satisfied the reason for the difference was not related to the commission of the offence.

Section 189 of the Criminal Proceeds Confiscations Act Queensland states:

1. (1) This section applies if-
   • (a) an application for a pecuniary penalty order relates to more than 1 confiscation offence; and
   • (b) at the hearing of the application, evidence is given that the value of the person’s property at any time during or after the offence period was more than the value of the property before the start of the offence period.
2. (2) The court must treat the difference as the benefits derived by the person from the commission of the offences, other than to the extent the court is satisfied the difference was not related to the commission of the offences.

What the police must prove

In order for the State to be successful in their application at Court, it must show the following:

1. You were convicted of a confiscation offence, i.e.:
   • (a) a serious criminal offence (i.e. maximum penalty of 5 years imprisonment or more); OR
   • (b) another indictable offence; OR
   • (c) an offence against the Criminal Proceeds Confiscations Act for which an offender is liable to imprisonment; OR
   • (d) an offence against any other Act; OR
   • (e) an offence against a provision specified in schedule 2, part 2 of the Criminal Proceeds Confiscations Act Queensland; AND
2. It made an application for a Pecuniary Penalty Order to the Supreme Court or the Court you were convicted in;AND
3. That application was:
   • (a) made within 6 months of your conviction; OR
   • (b) made later than 6 months of your conviction with leave of the court; AND
4. No other Pecuniary Order application has previously been made in respect of the offence, unless leave of the Court is granted because:
   • (a) the benefit to which the new application relates was identified only after the first application was finally decided; OR
   • (b) necessary evidence became available only after the first application was finally decided; OR
   • (c) it is otherwise in the interests of justice to give the leave.
5. It gave written notice to you as the respondent to that application (i.e. the offender); AND
6. The value of that illegitimate property by producing evidence of:
   • (a) the value of cash and other property that came into the possession or under the control of you or someone else at your request or direction, because of the illegal activity; OR
   • (b) the value of any benefit provided for you or someone else at your request or direction, because of the illegal activity; OR
   • (c) if the illegal activity involved a dangerous drug or controlled substance (the illegal drug)-
     • (i) the market value, when the illegal activity happened, of a dangerous drug or controlled substance similar, or substantially similar, to the illegal drug; and
     • (ii) the amount that was, or the range of amounts that were, ordinarily paid for an act similar, or substantially similar, to the illegal activity; OR
   • (d) the value of the your property-
     • (i) if the application relates to a single offence-before, during and after the commission of the offence; or
     • (ii) if the application relates to 2 or more offences-before, during and after the offence period (i.e. the period between the first and last offence); OR
   • (e) your income and expenditure-
     • (i) if the application relates to a single offence-before, during and after the commission of the offence; or
     • (ii) if the application relates to 2 or more offences-before, during and after the offence period (i.e. the period between the first and last offence)

It is not necessary for the State to prove that any property was derived from any offence, but rather all they need to do is show that the value of the your  property after the commission of the confiscation offence/s was more than the value of the property before the commission of the offence/s.

Note that in regards to evidence of the market value of illegal drugs, this evidence may be given by a Police Officer, Federal Police Officer or Customs Officer.

Maximum penalty

If the application is successful, the Court will impose a Pecuniary Penalty Order. The effect of such an order is that you will be required to pay to the State, the amount prescribed to be the benefit you received from commission of the offence.

You are entitled to attend the hearing of the application.

It is important you understand that the Court may also assess the value of the property, as at the date the Court makes such valuation.  This means that you may be required to pay more than the value of the property when it was actually acquired.  For example, if it is found that the market value of the drugs sold has increased, you maybe be required to pay the increased value of those drugs.

Where you have already had some property forfeited under a Forfeiture Order (either before or after your conviction or by automatic forfeiture), the Court may order that the value of that property be deducted from the amount you are required to pay to the State under the Proceeds Assessment Order.  Further, the Court may also deduct an amount in order to satisfy any restitution or compensation you are ordered to pay upon sentence for same the offence.

However, in the event that prior Forfeiture Order is later revoked on appeal, the State may apply to have the amount that was deducted from the Proceeds Assessment Order reinstated.

Note that the law is about to change to allow the State to also make an application to increase the amount of the Proceeds Assessment Order, where property is subsequently excluded from a Forfeiture Order.

In order to protect its interest in terms of the repayment of the debt, the State may put a charge over your property.  Click here to find out more.  Further the State may also put a charge over property that is not in your name, but is found to be in your effective control.  Click here to find out more.

Which court will hear the matter

The application will be heard in the Supreme Court or the Court you were convicted in.

Possible defences

There are no defences to this application, but rather grounds upon which a person can oppose the application or at least the alleged amount sought in the application. Possible grounds to oppose this application include:

1. The respondent (i.e. you) was not given reasonable notice of the application (note this would really only buy you more time to prepare your opposition).
2. The value of your property was not greater after the commission of the offences, then before.
3. All or part of the property was derived from legitimate sources.
4. All or part of the expenditure was from the proceeds of legitimate sources.
5. The property was accumulated prior to commission of the offences.