Pecuniary Penalty Order

A pecuniary penalty order is a type of confiscation order available under the Confiscation of Proceeds of Crime Act 1989 (NSW) and the Proceeds of Crime Act 2002 (Cth). 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 offence to the State or Commonwealth 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 and under Part 2.4 of the Proceeds of Crime Act 2002 (Cth). 

What is a Pecuniary Penalty Order:

A pecuniary penalty order requires the Defendant to pay the equivalent value of the benefits derived from the commission of their offence to the State or Commonwealth.  The Court may assess the value of the benefits derived from the commission of the offence and make an order for that value to be paid to the State or Commonwealth where a Defendant has been convicted of a serious offence other than a drug trafficking offence. 

The Acts define “conviction of a serious 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 Pecuniary Penalty Order be Made?

 An application for any confiscation order including a pecuniary penalty 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.

Notice of Application and Standing:

When a pecuniary penalty order is applied for the “appropriate officer” is required to give written notice of the application for a pecuniary penalty order to the person and the person may appear and adduce evidence at the hearing on whether the pecuniary penalty order will be made. 

How Does the Court Assess the Pecuniary Penalty Amount?

Section 25 of the Confiscation of Proceeds of Crime Act 1989 (NSW) and Division 2 of Part 2-4 of the Proceeds of Crime Act (Cth) establish how the Court is to make an assessment of the value derived from the commission of the offence in order to determine the pecuniary penalty 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 of the Defendant (or their delegate) because of the offence/s, 
• The value of any benefit provided for the Defendant (or their delegate) because of the offence/s, 
• If the offending involved prohibited drugs or prohibited plants, the market value of those substances or amount ordinarily paid for the quantity of those substances, 
• In relation to a single serious offence, the value of the Defendant’s property before and after the commission of the offence, 
• In relation to 2 or more serious offences, the value of the Defendant’s property before, during and after the offence period, 
• The Defendant’s income and expenditure:
  • In relation to a single serious offence before and after the commission of the offence, 
  • In relation to two or more serious offences before, during and after the offence period. 

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

Where a forfeiture order is also made, the Court can reduce the pecuniary penalty amount by the equivalent value of the property seized under the forfeiture order. 

Appealing Against a Pecuniary Penalty Order:

A pecuniary penalty 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) and Section 332 of the Proceeds of Crime Act 2002 (Cth). 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.