CONFISCATION ACT 1997 - SECT 68 Assessment of benefits in relation to Schedule 2 offences
CONFISCATION ACT 1997 - SECT 68
Assessment of benefits in relation to Schedule 2 offencesS. 68(1) amended by No. 87/2004 s. 19(j)(i)(ii).
(1) A prescribed person or a person belonging to a prescribed class of persons may apply to the Supreme Court for the application of this section in relation to a Schedule 2 offence.
S. 68(2) amended by No. 87/2004 s. 19(k).
(2) The DPP may apply to the Supreme Court or the County Court for the application of this section in relation to a Schedule 2 offence.
S. 68(3) amended by Nos 43/1998
s. 36(x), 68/2009 s. 97(Sch. item 23.54(a)).
(3) In assessing the value of the benefits derived by an accused in relation to an offence, the court must, on application under subsection (1) or (2), subject to subsection (4), treat as benefits—
S. 68(3)(a) amended by No. 68/2009 s. 97(Sch. item 23.54(b)).
(a) all property in which the accused had an interest at the time the first application is made under this Act in respect of the offence; and
S. 68(3)(b) amended by No. 68/2009 s. 97(Sch. item 23.54(b)).
(b) all expenditure of the accused within the period of 6 years immediately before the time the first application is made under this Act in respect of the offence—
regardless of whether any benefits were actually derived and whether they were derived in relation to an offence, but must not include any property which has been forfeited to the Minister under this Act.
S. 68(4) amended by No. 68/2009 s. 97(Sch. item 23.54(b)).
(4) On an application under subsection (1) or (2), the Supreme Court or the County Court may refuse to treat as benefits specified property or expenditure if the Court is satisfied by the accused that—
(a) in the case of property—
(i) the property—
S. 68(4) (a)(i)(A) amended by No. 68/2009 s. 97(Sch. item 23.54(b)).
(A) was lawfully acquired by the accused; and
S. 68(4)(a)(i)(B) substituted by No. 42/2007 s. 13.
(B) is not derived property; and
S. 68(4)(a)(i)(C) inserted by No. 42/2007 s. 13.
(C) is not tainted property; or
(ii) an interstate forfeiture order already applies to the property; or
(iii) a forfeiture order, an interstate forfeiture order, a pecuniary penalty order or an interstate pecuniary penalty order under the Crimes (Confiscation of Profits) Act 1986 already applies to the property; or
(b) in the case of expenditure—
(i) the funds which were expended were lawfully acquired and were not derived or realised, directly or indirectly, by any person from any unlawful activity; or
(ii) the expenditure was made to satisfy a pecuniary penalty order or an interstate pecuniary penalty order under this Act or the Crimes (Confiscation of Profits) Act 1986 .
Note to s. 68 inserted by No. 42/2007 s. 18(Sch. item 20).
Note
Property is defined as including any interest in property: see section 3(1).
S. 69 (Heading) inserted by No. 68/2010 s. 21.