Drug proceeds order
The Confiscation of Proceeds of Crime Act 1989 (NSW) allows a court to make an order for the confiscation of money or property that was acquired from the sale of drugs after it has found a person guilty of a drug offence.
When Can a Drug Proceeds Order be Made?
A drugs proceeds order can be made against a person who has been found guilty of a drug trafficking offence. To make an order the court must:
- establish whether the accused has gained any benefit related to drug trafficking;
- assess the value of any benefit if they believe that the benefit came from drugs; and
- create an order forcing the accused to pay the state a pecuniary penalty equal to the value assessed.
If the court makes this order it will be enforced as though it were a civil debt payable to the state.
How is the Amount Assessed?
If a pecuniary penalty is made then the court must take into consideration whether any property is subject to a forfeiture order related to the offence, or if a forfeiture order is proposed. It must also consider whether a pecuniary penalty order has been made and if so, the value of the pecuniary penalty order in order to determine the amount of the drugs proceeds order.
Can a Drugs Proceeds Order be Varied?
Yes. If the court took a forfeiture order into account when considering the value of the proceeds order and the forfeiture order was subsequently revoked then the court may increase the amount payable under the drugs proceeds order.
Evidence of Value of Drugs
To determine the value of drugs, the court will call on a member of the NSW Police Force, the Australian Federal Police Force or a Customs officer who has previous experience in investigating indictable offences under the Drug Misuse and Trafficking Act 1985 (NSW) to give evidence in any proceedings. When giving evidence they will be asked the market value of the substance or similar substances; or the range normally paid for the substance or similar substance.
If you require any advice relating to drug proceeds orders or any other legal matter, feel free to call us on 1300 038 223 or email us.
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