Confiscation Orders (Vic)
When a person is found guilty of a criminal offence in Victoria, the court may need to consider making a confiscation order. This is an order requiring the offender to surrender certain property to the state. This page deals with confiscation orders in Victoria.
Confiscation orders are made under the Confiscation Act 1997.
What is a confiscation order?
A confiscation order is a way for the court to prevent an offender from retaining the proceeds of their crime. A confiscation order is not part of the sentence that the court imposes but is generally made at the same time that the offender is sentenced. This is because the making of a confiscation order may need to be taken into account when the court is deciding on the sentencing orders to make. If the order places the offender in a worse position than they were in before the offending, this will be considered as a mitigating factor.
If a person is charged with an offence listed in Schedule 1 of the Confiscation Act 1997, or with a serious drug offence, the court may make a forfeiture order on the basis that certain property is tainted property. A forfeiture order directs that the property be forfeited to the Minister.
A court may also restrain tainted property at the time a person is charged with an offence, restraining them from disposing of the property until the charges have been dealt with. When this occurs, the property will generally be automatically forfeited when the offender is found guilty of the offence.
Tainted property is property that is:
- Use or intended to be used in connection with the offence
- Derived or realised from such property
- Derived or realised from the commission of the offence
Pecuniary penalty orders
If a person is found guilty of a Schedule 1 offence, the court may make a pecuniary penalty order (PPO). A PPO is an order that requires the offender to pay an amount to the state that is equal to the value of the benefits they derived from the offending. The court may reduce the amount to be paid under a PPO by any amount that have been ordered to be paid as restitution or compensation.
The court may include, when assessing the benefits of offending, the following:
- Money received as a result of the commission of the offence
- Property derived at the offender’s direction or request as a result of the offence;
- Benefits, services or financial advantages provided as a result of the commission of the offence;
- Any increases in the value of property in which the offender has an interest due to the commission of the offence;
- Any profits derived from a depiction of the offence;
- Anything else the court considers appropriate.
The Magistrates Court and Children’s Court may make forfeiture orders. However, only the Supreme Court or County Court may make forfeiture orders in respect of real property or a PPO for more than $100,000.
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