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Criminal Proceeds Confiscation Act – Pecuniary Penalty Order-Charge Over Property

Potts Lawyers > Criminal Law  > Crime Commissions & Confiscation Of Proceeds > Criminal Proceeds Confiscation Act – Pecuniary Penalty Order-Charge Over Property

What the law says

Section 196 of the Criminal Proceeds Confiscations Act Queensland states:

  1. This section applies if-
    • (a) a pecuniary penalty order is, or has been, made against a person convicted of a confiscation offence (the prescribed respondent); and
    • (b) a restraining order is, or has been, made against the property of a person, whether the prescribed respondent or someone else, based on-
      • (i)   the prescribed respondent’s conviction of the confiscation offence; or
      • (ii)  the charging, or proposed charging, of the prescribed respondent with the confiscation offence or a related indictable offence.
  2. A charge on the property that secures the payment to the State of the amount payable under the pecuniary penalty order comes into existence on the making of whichever is the later of the pecuniary penalty order or the restraining order.
  3. The charge ceases to have effect if-
    • (a) the pecuniary penalty order is discharged; or
    • (b) the pecuniary penalty is paid; or
    • (c) the property is disposed of under an order under section 219; or
    • (d) the property is disposed of with the approval of-
      • (i)   the Supreme Court; or
      • (ii) if the public trustee has been directed to take control of the property-the public trustee; or
    • (e) the property is sold to a buyer in good faith for sufficient consideration and without notice of the charge.
  4. The charge is subject to every encumbrance over the property that was in existence immediately before the pecuniary Section 219 (Public trustee may apply for order for satisfying liability because of confiscation order or automatic forfeiture) penalty order was made but has priority over all other encumbrances.

What the police must prove

The charge over the property comes into effect at such point in time when the Court has granted both a Pecuniary Penalty Order and a Restraining Order against a convicted offender.  However, as noted above, the orders need not be granted at the same time.  Accordingly the State must meet the requirement of a Pecuniary Penalty Order application and Restraining Order application.

Maximum penalty

If an application for a Pecuniary Penalty Order in respect of property is successful, then the State is automatically granted a charge over any property of the respondent that is already subject to a Restraining Order as a result of the respondent’s conviction or charge for a related offence.

If there is not Restraining Order in place at the time the Pecuniary Penalty Order, but a Restraining Order is subsequently made, then a charge will be place over the restrained property at the time of making the Restraining Order (if the respondent has not yet paid the requirement amount under the Pecuniary Penalty Order).

A charge is similar to a mortgage over you property, as it has the effect of giving the State an interest in your property over and above your interest.   However any earlier registered charges or mortgages over you property will have a greater interest than the State.

The purpose of the charge is to ensure that you pay the debt to the State.

Which court will hear the matter

The application will be heard in the Supreme Court.

Possible defences

The charge will remain effect until one of the following occurs:

  1. The Pecuniary Penalty Order is discharged on the hearing of an appeal against the making of the order; OR
  2. The amount payable to the State is paid; OR
  3. The person against whom the order is made, becomes bankrupt; OR
  4. The interest charged is sold or otherwise disposed of under this Act other than under a condition of a restraining order under this chapter or chapter 3 or by order of the Supreme Court under section 46 or 138; OR

The interest charged is sold to a purchaser for sufficient consideration who, at the time of purchase, had no notice of the charge.

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