Victorian Consolidated Legislation

Confiscation Act 1997 - SECT 59

Determination of application for pecuniary penalty order

59. Determination of application for pecuniary penalty order



(1) On an application under section 58(1) or (2), the court may-

   (a)  assess the value of the benefits derived by the defendant in relation
        to the offence; and

   (b)  order the defendant to pay to the State a pecuniary penalty equal to
        the value as so assessed less, if the court thinks it desirable to
        take it into account, any amount paid or payable by way of restitution
        or compensation in relation to the same conviction-

and must do so on an application under section 58(1) if section 68 applies in
relation to the Schedule 2 offence.

(2) The defendant is entitled to appear and to give evidence at the hearing of
an application under section 58(1) or (2) but the absence of the defendant
does not prevent the court from making a pecuniary penalty order.

(3) If an application is made under section 58(2) to the court before which
the defendant was convicted of the offence before that court has passed
sentence for the offence, that court may make a pecuniary penalty order at the
time of passing sentence and for this purpose the court may, if it thinks it
necessary to do so, defer the passing of sentence until it has determined the
application for the order.







(4) On an application under section 58(1) or (2) a court may, subject to any
rules of court, take into account in determining the application any material
that it thinks fit including-

   (a)  subject to section 99(2), a statement or disclosure made during an
        examination ordered under Part 12; and

   (b)  evidence given in any proceeding relating to the offence in reliance
        on the conviction of which the application is made-

and, for this purpose, the whole or any part of the transcript of those
proceedings is admissible in evidence as if it were a record of evidence given
on the hearing of the application.

(5) A court must give priority to an application made under section 84
(restitution order) or Division 2 of Part 4 (compensation order) of the
Sentencing Act 1991 in relation to the same conviction and, accordingly, may
defer the determination of an application under section 58(1) or (2) until the
application under the Sentencing Act 1991 has been determined.

(6) A court may defer the determination of an application under section 58(1)
until the final determination of any application for an exclusion order under
section 22(a).