Asset Forfeiture (NSW)
In certain circumstances, the New South Wales Director of Public Prosecutions (DPP) may confiscate a person’s assets after the person has been charged with or found guilty of an offence. This article outlines the various orders that can be made to prevent a person from disposing of assets that may be seized because they were acquired through criminal activity.
A restraining order prevents a person from disposing of the property specified in the order. A restraining order will be issued by the Supreme Court when there is reason to suspect that:
- the person who is the subject of the application has committed a serious criminal offence; or
- the person has acquired, directly or indirectly, property that originated from criminal activity; or
- the property was acquired because of a serious criminal offence.
If a person knowingly contravenes a restraining order by getting rid of the property that is the subject of the restraining order they may be guilty of another offence under Section 58L of the Victims Support and Rehabilitation Act 1996. This offence attracts a fine up to the value of the property and/or 2 years imprisonment. If the matter is heard in the Local Court the maximum penalty is $10,000.
A forfeiture order is an order imposed by the District Court or the Supreme Court and allows the DPP to seize a person’s assets under Section 18.1 of the Confiscation of Proceeds Crimes Act 1989. A forfeiture order can be imposed after a person has been convicted of a serious offence if the DPP suspects that the assets were derived from criminal activity such as a drug deal or if they intend to prosecute the person within 48 hours.
Pecuniary Penalty Order
The Confiscation of Proceeds of Crimes Act allows the DPP to apply for a pecuniary penalty order which allows the court to impose a penalty of equal to the value to the benefits obtained as a result of the criminal offence. If the court imposes a pecuniary penalty then the person will be ordered to pay that value to the state.
Drug Proceeds Order
Section 29 of the Confiscation of Proceeds of Crime Act 1989 permits the DPP to apply for a drugs proceeds order against a person (referred to in the act as the defendant). A drugs proceeds order is an order requiring a person to pay a penalty equal to the amount of the benefit gained through drug trafficking activity. A drugs proceeds order can be enforced as if the amount payable was a civil debt.
If you require legal advice about asset forfeiture to the NSW DPP or any other legal matter, please contact Armstrong Legal.