Forfeiture To NSW Crime Commission
Often when persons engage in criminal activity, they do so for a financial gain. In New South Wales, the Criminal Assets Recovery Act 1990 (NSW) Section 22.1 allows the NSW Crime Commission to apply to the Supreme Court for a forfeiture order in respect of property that has been obtained through crime. There are different types of asset forfeiture orders the court can make.
A Restraining Order
A restraining order is an order that prevents a person disposing, interfering with or attempting to dispose of the property specified in the order. A restraining order remains in force while an application for an asset forfeiture order is pending.
The NSW Crime Commission can apply to the Supreme Court for a restraining order relating to specific property. When a restraining order is made the person affected will receive a notice advising them of the order. If a person contravenes a restraining order they may receive a fine of an amount equivalent to the value of the property determined by the Supreme Court and/or sentenced to imprisonment for a maximum of two years.
An Asset Forfeiture Order
The effect of an asset forfeiture order is that any property that is the subject of the order must be surrendered to the state.
Similar to a restraining order, the NSW Crime Commission can apply to the Supreme Court for an asset forfeiture order relating to specified interests in property. An authorised officer has the authority to apply for a forfeiture order when they believe that it was derived from criminal activity, or was illegally acquired.
A Proceeds Assessment Order
If a proceeds assessment order is made then the person must pay the NSW Treasurer an amount determined by the Supreme Court as accurately representing the value of the proceeds gained from criminal activity.
Under Section 27 of the Criminal Asset Recovery Act 1990 (NSW) the NSW Crime Commission has the authority to apply to the Supreme Court for a Proceeds Assessment Order against an individual if they have reason to believe that the person gained proceeds from a serious criminal activity punishable by a maximum penalty of imprisonment for five years or more.
An Unexplained Wealth Order
Section 27(1) states that the Crime Commission may apply for an unexplained wealth order compelling a person to pay the Treasurer an amount equivalent to the value of the unexplained wealth of the person.
If the Crime Commission suspects that a person has acquired wealth through illegal activity then it may apply to the Supreme Court for an Unexplained Wealth Order under section 28a of the Criminal Assets Recovery Act 1990.
A monitoring order compels a financial institution to share details of transactions with the NSW Crime Commission. It is an offence not to provide transaction details when a Monitoring Order has been made and this carries a maximum fine of 1,000 penalty units.
Section 48 of the Criminal Assets Recovery Act 1990 (NSW) permits the NSW Crime Commission to apply to the Supreme Court for a Monitoring Order if it suspects that a financial institution has information about transactions under investigation on suspicions of being related to criminal activity.
If you require legal advice about asset forfeiture to the NSW Crime Commission or any other legal matter, please contact Armstrong Legal.