Proceeds assessment order
A proceeds assessment order is an order compelling an offender to pay to the Treasurer the amount of money they have derived from illegal activity.
When Can an Application for a Proceeds Assessment Order be Made?
Normally an application for a proceeds assessment order will relate to property already subject to a restraining order. However, a proceeds assessment order may be made whether or not a restraining order has previously been made.
An application for a proceeds assessment order must be made to the Supreme Court within 6 years of the alleged serious crime related activity.
Proceeds Assessment Order: What Does the Crown have to Prove?
The Supreme Court must make a proceeds assessment order against a person if the court finds it more probable than not that:
- The persons derived proceeds from an illegal activity of another person; and
- The person knew or ought reasonably to have known that the proceeds were derived from an illegal activity of another person; and
- The other person was, within the 6 years prior to the making of the application for the proceeds assessment order, engaged in a serious crime related activity.
How Does the Court Assess the Amount of Money from Illegal Activity?
When assessing the amount of money derived from illegal activity, the Court will take into account a number of factors including the money acquired by the defendant because of the illegal activity, the market value of the drugs at the time of the illegal activity (if relevant) and the defendant’s income and expenditure before and after the illegal activity.
Expenses incurred by the defendant in relation to the activity will not be subtracted from the amount assessed to have derived from the illegal activity. So, for example, in the case of an illegal activity involving the sale of drugs, when determining the value of the proceeds derived by the defendant from the sale of drugs there is to be no reduction of the amount spent by the defendant acquiring the drugs in the first place.
Seek Legal Advice
If you have been given written notice of a proceeds assessment order application, it is essential that you seek legal advice immediately, attend the hearing and give evidence. If you are able to prove the source of funds used to acquire the property named in the application, the court has the discretion not to grant the proceeds assessment order.