New South Wales Consolidated Acts

CRIMINAL ASSETS RECOVERY ACT 1990 - SECT 28

28 Assessment of proceeds of serious crime related activity

(1) For the purpose of making an assessment under section 27 in relation to the proceeds derived by a person (in this section called "the defendant") from an illegal activity, or illegal activities, of the person or another person the Supreme Court is to have regard to the following matters:

(a) the money, or the value of any interest in property other than money, directly or indirectly acquired by:

(i) the defendant, or

(ii) another person at the request, or by the direction, of the defendant,

because of the illegal activity or activities,

(b) the value of any service, benefit or advantage provided for:

(i) the defendant, or

(ii) another person at the request, or by the direction, of the defendant,

because of the illegal activity or activities,

(c) the market value, at the time of the illegal activity or of each illegal activity, of a plant or drug similar, or substantially similar, to any involved in the illegal activity or each illegal activity, and 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 each illegal activity,

(d) the value of the defendant’s property before and after the illegal activity or each illegal activity,

(e) the defendant’s income and expenditure before and after the illegal activity or activities.

(2) If evidence is given at the hearing of an application for a proceeds assessment order that the value of the defendant’s property after an illegal activity or illegal activities of the defendant exceeded the value of the defendant’s property before the activity or activities, the Supreme Court is to treat the excess as proceeds derived by the defendant from the activity or activities, except to the extent (if any) that the Supreme Court is satisfied the excess was due to causes unrelated to an illegal activity or activities.

(3) If evidence is given at the hearing of an application for a proceeds assessment order of the amount of the defendant’s expenditure during the period of 6 years before the making of the application for the order, the Supreme Court is to treat any such amount as proceeds derived by the defendant from an illegal activity or activities, except to the extent (if any) that the Supreme Court is satisfied the expenditure was funded from income, or money from other sources, unrelated to an illegal activity or activities.

(3A) The Supreme Court is not to take expenditure into account under subsection (3) to the extent that the Court is satisfied that it resulted in the acquisition of property the value of which is taken into account under subsection (2).

(4) In making an assessment as provided by this section, none of the following amounts are to be subtracted:

(a) expenses or outgoings incurred by the defendant in relation to the illegal activity or activities,

Note: For example, in the case of an illegal activity involving the sale of drugs, in determining the value of the proceeds derived by the defendant from the sale of drugs there is to be no reduction on account of any expenditure by the defendant in acquiring the drugs.

(b) the value of any proceeds derived as agent for or otherwise on behalf of some other person (whether or not any of the proceeds are received by that other person).

Note: For example, where the defendant is paid money for drugs in the course of a “controlled buy” but was acting merely as an agent or messenger for some other person (and gives the money to the other person), in calculating the proceeds derived by the defendant the amount given to the other person is not to be subtracted and the full amount is considered to have been derived by the defendant.

(5) This section applies to, and in relation to:

(a) property that comes into the possession, or under the effective control, of a person either within or outside New South Wales, and

(b) proceeds acquired either within or outside New South Wales in relation to an illegal activity.

(6) Despite any rule of law, or any practice, relating to hearsay evidence, the Supreme Court may, for the purposes of this section, receive evidence of the opinion of:

(a) a member of the Police Force, or

(b) a member of the Australian Federal Police, or

(c) an officer of Customs within the meaning of the Customs Act 1901 of the Commonwealth, or

(d) a member or officer of the Commission,

who is experienced in the investigation of illegal activities involving plants or drugs, being an opinion with respect to:

(e) the amount that was the market value at a particular time of a particular kind of plant or drug, or

(f) the amount, or range of amounts, ordinarily paid at a particular time for the doing of anything in relation to a particular kind of plant or drug.