Victorian Consolidated Legislation

Confiscation Act 1997 - SECT 64

Determination of application for pecuniary penalty order

64. Determination of application for pecuniary penalty order



(1) On an application under section 63(1), the Supreme Court must, if it finds
on the balance of probabilities that the defendant committed the Schedule 2
offence with which the defendant was charged, whether or not the defendant has
been tried and, if tried, acquitted-

   (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 Supreme 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 Schedule 2
        offence.

(2) The defendant is entitled to appear and to give evidence at the hearing of
an application under section 63(1) but the absence of the defendant does not
prevent the Supreme Court from making a pecuniary penalty order.

(3) The Supreme 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)  if the application is heard after the defendant has been tried for the
        Schedule 2 offence, evidence given in any proceeding relating to that
        offence-

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.

(4) The Supreme 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 Schedule 2 offence and,
accordingly, may defer the determination of an application under section 63(1)
until the application under the Sentencing Act 1991 has been determined.

(5) The quashing of a conviction for a Schedule 2 offence does not affect the
validity of a pecuniary penalty order under this Division that was made before
or after the conviction was quashed and was based on that offence.

(6) The making of a pecuniary penalty order under this Division against a
defendant in relation to an offence does not prevent the making of a civil
forfeiture order in relation to the same offence.