Drug Proceeds Order

A drug proceeds order is a type of confiscation order available under the Confiscation of Proceeds of Crime Act 1989 (NSW). It is a Court ordered requirement for the Defendant to pay a specified amount of money equivalent to the benefits derived from the commission of their drug trafficking offence to the State as a penalty for their actions. The power to apply for a pecuniary penalty order is contained under Part 2 of the Confiscation of Proceeds of Crime Act 1989 (NSW). 

What is a Drug Proceeds Order?

A drug proceeds order requires the Defendant to pay the equivalent value of the benefits derived from the commission of their drug related offence to the State.  

Where an application is made for a drug proceeds order where the Defendant has been convicted of a drug trafficking offence, the Court must:

1. Determine whether any benefit has been derived in connection with drug trafficking at any time, and
2. If the Court believes the Defendant has benefitted, the Court must assess the value of that benefit, and
3. Order the Defendant to pay the State a pecuniary penalty equal to the amount so assessed.

The Acts define “conviction of a serious {drug) offence” to include circumstances where the Defendant has been convicted (whether summarily or on indictment), has been discharged without a conviction pursuant to Section 10 of the Crimes (Sentencing Procedure) Act 1999, was sentenced for another offence with the serious offence being taken into account on a Form 1 and where the Defendant has absconded. 

When Can an Application for a Drug Proceeds Order be Made?

 An application for any confiscation order including a drug proceeds order must be made within the “relevant period” as defined in Section 4 of the Act. The “relevant period” is 6 months after the day on which:

• The offender was sentenced, 
• An order was made in relation to the offence under Section 10 of the Crimes (Sentencing Procedure) Act 1999, 
• The Court took the offence into account on a ‘Form 1’, or 
• The person is taken to have absconded. 

Only the Supreme Court can give leave (permission) for an application for a pecuniary penalty order to be made outside the relevant period.

How Does the Court Assess the Drug Proceeds Order Amount?

Sections 29 and 30 of the Confiscation of Proceeds of Crime Act 1989 (NSW) establish how the Court is to make an assessment of the value derived from the commission of the drug trafficking offence in order to determine the drug proceeds order amount.  

The legislation creates a rebuttable presumption where if the value of the Defendant’s property is greater after the offence than before, that such excess was derived from the commission of the offence. The Defendant can rebut this presumption by satisfying the Court that all or part of the excess was not related to the offence. 

 The factors to be considered are:

• The money or value of property other than money that came into the possession or control of the Defendant (or their delegate) at any time in connection with the drug trafficking, 
• The value of any benefit provided for the Defendant (or their delegate) because participating in a public promotion regarding the drug trafficking,
• The market value of the illegal substances or amount ordinarily paid for the quantity of those substances, 
• The value of the Defendant’s property appearing to the Court to have been held at an time since conviction or to have been transferred at any time since the beginning of 6 years that ended when proceedings were instituted,
• The value of the Defendant’s income and expenditure at any time since conviction or at any time since the beginning of 6 years that ended when proceedings were instituted. 

When determining the value to be paid under the drug proceed order, the Court is unable to deduct any expenses or outgoings incurred by the Defendant in the commission of the offence. 

Appealing Against a Drug Proceeds Order:

A drug proceeds order can be appealed as if it were a sentence imposed on the offender pursuant to Section 92 of the Confiscation of Proceeds of Crime Act 1989 (NSW). An appeal must be made within 28 days from the making of the order. If the appeal is not filed within 28 days, it can be filed up to 3 months from the making of the order with leave of the Court.