PROCEEDS OF CRIME ACT 1987 - SECT 26 Pecuniary penalty orders

PROCEEDS OF CRIME ACT 1987 - SECT 26

  (1)   Where:

  (a)   an application is made to a court for an order under this section in respect of benefits derived by a person from the commission of an offence; and

  (b)   the court is satisfied that the person derived benefits from the commission of the offence;

the court may, if it considers it appropriate:

  (c)   assess, in accordance with section   27, the value of the benefits so derived; and

  (d)   order the person to pay to the Commonwealth a pecuniary penalty equal to the penalty amount.

  (2)   Subject to subsections   ( 3) and (4), the penalty amount is the value of the benefits as assessed under paragraph   ( 1)(c).

  (3)   Where:

  (a)   property that is proceeds of the offence has been forfeited, under this Act or another law of the Commonwealth or under a law of a Territory, in relation to the offence; or

  (b)   a forfeiture order is proposed to be made against property that is proceeds of the offence;

the penalty amount shall be taken to be reduced by an amount equal to the value of the property as at the time of the making of the pecuniary penalty order.

  (4)   Where the court making a pecuniary penalty order is satisfied that an amount of tax (whether payable under a law of the Commonwealth, a State, a Territory or a foreign country) that has been paid by the person is attributable in whole or in part to the benefits in respect of which the order is being made, the court may determine that the penalty amount be reduced by the amount that, in the opinion of the court, represents the extent to which the amount of tax so paid is attributable to those benefits and where the court makes such a determination the penalty amount shall be taken to be reduced accordingly.

  (5)   If the court considers it appropriate to do so, the court may reduce the amount payable by a person under a pecuniary penalty order made in relation to an offence by an amount equal to the amount payable by the person by way of fine, restitution, compensation or damages in relation to the offence.

  (6)   Where:

  (a)   a court makes a pecuniary penalty order in relation to an offence;

  (b)   in calculating the penalty amount, the court took into account a forfeiture of, or proposed forfeiture order in respect of, property; and

  (c)   an appeal against the forfeiture or forfeiture order is allowed or the proceedings for the proposed forfeiture order terminate without the proposed forfeiture order being made;

the DPP may apply to the court for a variation of the pecuniary penalty order to increase the penalty amount by the value of the property and the court may, if it considers it appropriate to do so, vary the order accordingly.

  (7)   Where:

  (a)   a court makes a pecuniary penalty order against a person in relation to an offence;

  (b)   in calculating the penalty amount, the court took into account, in accordance with subsection   ( 4), an amount of tax paid by the person; and

  (c)   an amount is repaid or refunded to the person in respect of that tax;

the DPP may apply to the court for a variation of the pecuniary penalty order to increase the penalty amount by the amount repaid or refunded and the court may, if it considers it appropriate to do so, vary the order accordingly.

  (8)   An amount payable by a person to the Commonwealth in accordance with a pecuniary penalty order is a civil debt due by the person to the Commonwealth.

  (9)   A pecuniary penalty order against a person may be enforced as if it were an order made in civil proceedings instituted by the Commonwealth against the person to recover a debt due by the person to the Commonwealth and the debt arising from the order shall be taken to be a judgment debt.