Proceeds Of Crime (NSW)
In New South Wales, the Crimes Act 1900 and the Criminal Assets Recovery Act 1990 deal with proceeds of crime. Proceeds of crime are cash, property, other assets or benefits gained through criminal activity.
No criminal conviction is needed before order can be made, and property can be confiscated even when a suspect has not been identified.
The main aim of the laws is to remove the financial gain associated with crime. The laws also act as a deterrent to crime and help police trace property acquired from illegal activity.
The Crimes Act
The Crimes Act states a person commits an offence if they deal with proceeds of crime knowing that is proceeds of crime. The maximum penalty is 15 years’ imprisonment. If a person intends to conceal that it is proceeds of crime, that penalty increases to 20 years’ imprisonment. If a person is reckless as to whether it is proceeds of crime, the maximum penalty is 10 years’ imprisonment.
“Deal with” includes to receive, possess, conceal, dispose of, bring or cause to be brought into NSW, or engage directly or indirectly in a transaction.
If a person deals with property, and there are reasonable grounds to suspect the property is proceeds of crime, and the value of the property is $100,000 or more, the maximum penalty is imprisonment for 5 years. If the value of the property is less than $100,000, the maximum prison term is 3 years.
The Act states reasonable grounds includes when the dealing involves:
- transactions structured or arranged to avoid required financial reporting;
- the use of one or more bank accounts in false names;
- property that is grossly out of proportion to the person’s income and expenses;
- a significant cash transaction, and that transaction has not been reported as required or false or misleading information has been given about it;
- a claim the dealing was done on behalf of a person and no information is given that allows that person to be identified and found.
If a person deals with property intending that it will be used to commit a serious offence and it then is used for that purpose, they face a maximum penalty of 15 years. If the person is reckless about whether the property will be used to commit a serious offence, and it is then used for that purpose, the maximum prison term is 10 years.
A single charge can be about one act or several acts committed at the same time or different times. If the single charge is about 2 or more acts, and the value of the property is an element of the offence, the value is the sum of the values of the property from each act.
A jury has the power to deliver an “alternative verdict” when dealing with these offences. For instance, if a person is charged with dealing with proceeds of crime knowing it is proceeds of crime, and the jury is not satisfied the person knew it was proceeds of crime, the jury can find the person not guilty of that offence but guilty of dealing with proceeds of crime being reckless as to whether it is proceeds of crime.
Criminal Assets Recovery Act
A range of orders can be made under this act to recover proceeds of crime.
A restraining order directs that specified property must not be disposed of or otherwise dealt with by anyone except in the way specified in the order. Control of specified property can be taken over by the NSW Trustee and Guardian. An order can be sought when police reasonably believe a person has engaged in serious crime and the person has an interest in the property. An application must be supported by an affidavit from a police officer. This order is made to ensure property will be available to satisfy a forfeiture order. Serious crime includes drug trafficking, blackmail, harbouring criminals, illegal gambling and homicide.
Assets forfeiture order
The NSW Crime Commission can apply to the Supreme Court for a forfeiture order that forfeits a person’s restrained property to the state. The court can make the order if it finds it to be more probable than not that the person engaged in serious crime in the past 6 years. This order allows property the forfeited property to be sold by the NSW Trustee and Guardian.
Proceeds assessment order
The commission can apply to the Supreme Court for a proceeds assessment order that requires a person to pay to the state the value of the proceeds derived from their illegal activity in the past 6 years.
Unexplained wealth order
The commission can apply to the Supreme Court for an unexplained wealth order that requires a person to pay to the state an amount assessed by the court to be the value of the person’s unexplained wealth. The court must be satisfied there is a reasonable suspicion the person engaged in serious crime at some time, and that the person’s current or previous wealth was acquired unlawfully.
For advice or representation in any legal matter, please contact Armstrong Legal.