Commonwealth Consolidated Acts Commonwealth Consolidated Acts (1)
In this section:
(a) in relation to a bankruptcy—the trustee of the estate of the
bankrupt; or
(b) in relation to a composition or scheme of arrangement under
Division 6 of Part IV of the Bankruptcy Act 1966 —the trustee
of the composition or scheme of arrangement; or
(c) in relation to a personal insolvency agreement under Part X of the Bankruptcy Act 1966 —the trustee of the agreement; or
(d) in relation to the estate of a deceased person in respect of which
an order has been made under Part XI of the Bankruptcy Act 1966
—the trustee of the estate.
"offence period" , in relation to an application under subsection 14(1) made
in relation to 2 or more offences, means the period commencing when the
earlier or earliest of those offences was committed and ending when the later
or latest of those offences was committed.
(2)
For the purposes of an application for a pecuniary penalty order
against a person (in this subsection called the defendant ), the value of the
benefits derived by the defendant from the commission of an offence or
offences shall be assessed by the court having regard to the evidence before
it concerning all or any of the following:
(a) the money, or the value of the property other than money, that came
into the possession or under the control of:
(i) the defendant; or
(ii) another person at the request or direction of the defendant;
by reason of the commission of the offence or any of the offences;
(b) the value of any other benefit provided to:
(i) the defendant; or
(ii) another person at the request or direction of the defendant;
by reason of the commission of the offence or any of the offences;
(c) if the offence or any of the offences consisted of the doing of an
act or thing in relation to a narcotic substance:
(i) the market value, at the time of the offence, of similar or
substantially similar narcotic substances; 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 defendant’s property:
(i) where the application relates to a single offence—before,
during and after the commission of the offence; or
(ii) where the application relates to 2 or more offences—before,
during and after the offence period;
(e) the defendant’s income and expenditure:
(i) where the application relates to a single offence—before,
during and after the commission of the offence; or
(ii) where the application relates to 2 or more offences—before,
during and after the offence period.
(3)
The court, in quantifying the value of a benefit for the purposes of
this section, may treat as the value of the benefit the value that the benefit
would have had if derived at the time when the valuation is being made and,
without limiting the generality of this, may have regard to any decline in the
purchasing power of money between the time when the benefit was derived and
the time when the valuation is being made.
(4)
Where an application is made for a pecuniary penalty order against a
person in respect of a single ordinary indictable offence, the following
provisions have effect:
(a) if, at the hearing of the application, evidence is given that the
value of the person’s property during or after the commission of the
offence exceeded the value of the person’s property before the
commission of the offence, then, for the purposes of subsection 26(1), the
court shall, subject to paragraphs (b) and (c) and subsection (7),
treat the value of the benefits derived by the person from the commission of
the offence as being not less than the amount of the greatest excess;
(b) if, after evidence of the kind referred to in paragraph (a) is
given, the person satisfies the court that the whole of the excess was due to
causes unrelated to the commission of the offence, paragraph (a) does not
apply to the excess;
(c) if, after evidence of the kind referred to in paragraph (a) is
given, the person satisfies the court that a part of the excess was due to
causes unrelated to the commission of the offence, paragraph (a) applies
to the excess as if it were reduced by the amount of that part.
(5)
Where an application is made for a pecuniary penalty order against a
person in respect of 2 or more ordinary indictable offences, the following
provisions have effect:
(a) if, 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 exceeded the value of the person’s property before the
offence period, then, for the purposes of subsection 26(1), the court shall,
subject to paragraphs (b) and (c) and to subsection (7), treat the
value of the benefits derived by the person from the commission of the
offences as being not less than the amount of the excess;
(b) if, after evidence of the kind referred to in paragraph (a) is
given, the person satisfies the court that the whole of the excess was due to
causes unrelated to the commission of the offences, paragraph (a) does
not apply to the excess;
(c) if, after evidence of the kind referred to in paragraph (a) is
given, the person satisfies the court that a part of the excess was due to
causes unrelated to the commission of the offences, paragraph (a) applies
to the excess as if it were reduced by the amount of that part.
(6)
Where an application is made for a pecuniary penalty order against a
person in relation to a serious offence or serious offences:
(a) all property of the person at the time the application is made; and
(b) all property of the person at any time:
(i) within the period between the day the offence, or the earliest
offence, was committed and the day on which the application is made; or
(ii) within the period of 5 years immediately before the day on which
the application is made;
whichever is the shorter;
shall be presumed, unless the contrary is proved,
to be property that came into the possession or under the control of the
person by reason of the commission of the offence or offences.
(7)
A benefit shall not be taken into account for the purposes of this
section if a pecuniary penalty has been imposed in respect of the benefit
under:
(a) this Act;
(b) Division 3 of Part XIII of the Customs Act;
(c) a law of a Territory; or
(d) a law of a State.
(8)
In calculating, for the purposes of an application for a pecuniary
penalty order, the value of benefits derived by a person from the commission
of an offence or offences, any expenses or outgoings of the person in
connection with the commission of the offence or offences shall be
disregarded.
(9)
For the purposes of this section, where property of a person vests in
an insolvency trustee, the property shall be taken to continue to be the
property of the person.
(10) At
the hearing of an application for a pecuniary penalty order, a police officer,
or a Customs officer, who is experienced in the investigation of narcotics
offences may testify, to the best of the officer’s information,
knowledge and belief:
(a) with respect to the amount that was the market value of a narcotic
substance at a particular time or during a particular period; or
(b) with respect to the amount, or the range of amounts, that was the
amount, or range of amounts, ordinarily paid at a particular time, or during a
particular period for the doing of an act or thing in relation to a narcotic
substance;
notwithstanding any rule of law or practice relating to hearsay
evidence, and the testimony is prima facie evidence of the matters testified
to.