Victorian Consolidated Legislation

Confiscation Act 1997 - SECT 68

Assessment of benefits in relation to Schedule 2 offences

68. Assessment of benefits in relation to Schedule 2 offences



(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.

(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.





(3) In assessing the value of the benefits derived by a defendant in relation
to an offence, the court must, on application under subsection (1) or (2),
subject to subsection (4), treat as benefits-

   (a)  all property in which the defendant had an interest at the time the
        first application is made under this Act in respect of the offence;
        and

   (b)  all expenditure of the defendant 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.

(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 defendant that-

   (a)  in the case of property-

   (i)  the property-

                (A)  was lawfully acquired by the defendant; and

                (B)  is not derived property; and

                (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 Property is defined as
        including any interest in property: see section 3(1).