Association offences (The Criminal Proceeds (Recovery) Act 2010

Question 1

Who can an Assets forfeiture order be issued by and on what groundS?

Answer 1

Issued by the high court of application
The application must show, on the balance of probabilities, that specific assets which have been acquired have been tainted by significant criminal activity.

Question 2

What is “tainted property” ?

Answer 2

Any property that has, wholly or in part, been acquired as a result of significant criminal activity or directly or indirectly derived from significant criminal activity.

Includes;
any property that has been acquired as a result of, or directly or indirectly derived from, more than 1 activity if at least 1 of those activities is a significant criminal activity.

Question 3

What is a qualifying instrument forfeiture offence?

Answer 3

Offence punishable by 5 years imprisonment or more
Including; an attempt, conspiracy or being an accessory if the punishment is more than 5 years.

Question 4

What is the definition of significant criminal history?

Answer 4

Activity engaged in by a person that if proceeded against as a criminal offence would amount to offending
- That is, or includes, 1 or more offences punishable by a max 5 years imprisonment or
- From which property, proceeds or benefits of a value of $30 000 or more have, directly or indirectly, been acquired or derived

Question 5

What is the meaning of unlawfully benefited from significant criminal activity?

Answer 5

A person has unlawfully benefited from significant criminal activity if the person has knowingly, directly or indirectly, derived a benefit from significant criminal activity (whether or not that person under took or was involved in the significant criminal activity.)

Question 6

Section 55 Criminal Proceeds (Recovery) act 2009 stipulates when the high court must make a profit forfeiture order - when is that?

Answer 6

If it is satisfied on the balance of probabilities that
- The respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity; and
- The respondent has interests in the property

Question 7

What is demonstrated in the case of Pulman v the Commissioner of Police?

Answer 7

Whether a person benefited from the activity undertaken.

Question 8

What is the example provided in Pulman v The Commissioner of Police?

Answer 8

Pulman, a pharmacist, was a party to the production of meth because he was selling precursor substances knowing they were being used to manufacture illicit drugs.

Question 9

What was argued by Pulman?

Answer 9

Pulman argued that cash had been used to purchase the precursor substances and that cash was used (by his employer) to pay employees so he had not benefited from the sale himself.

Question 10

What was held in Pulman v The Commissioner of Police?

Answer 10

The court held that the purpose fo the forfeiture was not only to prevent the ability of a person to actually profit from undertaking the significant criminal history but also the “chance” that they may be able to do so and also to deter significant criminal activity. Therefore he had unlawfully benefitted as soon as he had received the cash - how he dealt with it was irrelevant.

Question 11

What is an instrument of crime?

Answer 11

• Property used (wholly or in part) to commit or facilitate the commission of a qualifying instrument forfeiture offence
• In respect of an offence against the Terrorism Suppression Act 2002, includes funds allocated for the purposes of committing that offence; and
• In relation to any property referred to in para (a) and (b) the proceeds of any disposition of that property or any other property into which that property is converted, after the commission of the qualifying instrument forfeiture offence, except to the extent provided otherwise by any order of a court under this act or the sentencing act. Excluding any severable interest or granting relief.

Question 12

What does Section 142B of the Sentencing Act 2002 place an obligation on?

Answer 12

It places obligations on the prosecutor to consider notifying the court of any relevant property that is an instrument of crime so that forfeiture of that property can be considered as part of the sentencing process. This could include vehicles and property used to facilitate the commission of an offence.

Question 13

What is an example of property that the prosecution could notify the court of for consideration into a forfeiture of that property?

Answer 13

• A house used in the manufacture of methamphetamine or a motor vehicle used in the delivery of illegal drugs

Question 14

What is an example of property that the prosecution may not notify the court of for consideration into forfeiture?

Answer 14

Where an offender uses his old beat up car, worth little, to make his drug deliveries, the prosecutor may think there is no need for the court to consider forfeiture.

Question 15

What is the definition of a ‘prosecutor’?

Answer 15

A person for the time being in charge of the criminal file and includes:
- Any other employee of the person or agency by whom the prosecutor is employed who has responsibilities for any matter directly connected with the proceedings; and
- Counsel representing the person who commenced the proceedings
- In the case of a private prosecution, the person who commenced the proceedings or counsel representing that person

Question 16

What are the duties of a prosecutor if the offender is convicted of a qualifying instrument forfeiture offence under S142B Sentencing Act 2002 and any property was used to commit, or to facilitate the commission of that offence?

Answer 16

If, in the prosecutors opinion, the court should consider whether to make an instrument forfeiture order in respect of that property,
The prosecutor must notify the court in writing of
- The details of that property
- The name and identifying details of any person (other than the offender) who, to the knowledge of the prosecutor, has an interest in the property.

Question 17

What is the practical obligation of S142B Sentencing Act - duties of the prosecutor if the offender is guilty of qualifying instrument forfeiture offence?

Answer 17

In practice, it is the duty of the Officer in Charge of the criminal file to notify their counsel for the Crown Solicitor that there is property that is an instrument of crime.

Question 18

What needs to be put in the referral to the Crown Solicitor in relation to ‘duties of the prosecutor if the offender is guilty of qualifying instrument forfeiture offence’?

Answer 18

A request that they file a ‘prosecutors notice’ with the court, advising them that the court should consider making an instrument forfeiture order.

Question 19

What is meant by “restraint of instrument of crime”?

Answer 19

Property that is an instrument of crime may need to be restrained while the criminal proceedings take their course, to prevent disposal of the asset or erosion of its value by being further encumbered (e.g. a mortgage). Where such circumstances exist, it is recommended that this action is taken.

Question 20

What will restraint of instrument of crime require?

Answer 20

An application for restraining order relating to instrument of crime.
Application is on notice to any person with an interest in the property.W

Question 21

When can a restraint of instrument of crime notice be without notice?

Answer 21

If the court is satisfied there is a risk to the property being destroyed/disposed/altered/concealed if notice was given.

Question 22

Before preparing an application for a restraint of instrument of crime, an assessment process is required. This is conducted to determine:

Answer 22

• The value of the asset
• The equity of the asset
• Any third party interest in the asset
• The cost of action in respect of the asset

Question 23

Such an application will require a straight forward affidavit from the officer in charge of the file outlining:

Answer 23

• OC details
• Offender(s) details, charges, criminal convictions
• Search warrant - describe the nature of the offending discovered at or involving the property concerned. (where it’s high value this needs to demonstrate commercial level offending)
• Admissions made during interview(s)
• Property - Must show the offender has custody or control and describe the property sought and its value.

Question 24

Who must you seek guidance from before / during the application for a forfeiture order / restraint of instrument of crime?

Answer 24

ARU - Asset recovery unit

Question 25

What if no conviction is entered?

Answer 25

If no conviction is entered, any restraint order will lapse and there will be no instrument of forfeiture.

Question 26

What is an instrument forfeiture order made under?

Answer 26

An order made under s142N of the Sentencing Act 2002.

Question 27

What must occur before Criminal Proceeds action can be taken?

Answer 27

A restraining order is the first step in the asset seizure process.

In the case of tainted property and benefits from crime, an application made to the High Court must show REASONABLE GROUNDS for belief that the property is tainted. That it has been acquired, or directly or indirectly derived, from “significant criminal history”.

Question 28

What is “significant criminal history”?

Answer 28

Is defined as activity engaged in by a person that if proceeded against as a criminal offence would amount to offending
- that consists of, or includes, 1 or more offences punishable by a maximum term of imprisonment of 5 years or more; or
- From which property, proceeds, or benefits of a value of $30 000 or more have directly or indirectly been acquired or derived.

Question 29

Can Property partly used result in forfeiture?

Answer 29

If the property has only been partly used for the purposes of the crime, the entire property is an instrument of crime and may be subject to forfeiture.

Question 30

What is the example in R v Elliot in relation to partial forfeiture?

Answer 30

Conviction of cultivating cannabis on a significant scale from his home and garage over several years.
The property had previously been paid off legitimately
The court INITIALLY stated that the nature of the property meant it couldn’t be severed and believed that forfeiture was all or nothing HOWEVER this was appealed.

Question 31

What was held in the court of appeal in the case of R v Elliot?

Answer 31

Any sentence imposed is subject to adjustment so as to take into account the financial impact of the forfeiture of such property. A balancing act is required regarding the harshness of any penalty through the forfeiture.

Question 32

In the case of R v Elliot, what was the eventual result?

Answer 32

HIGH COURT - Elliot should lose his property in its entirety and receive 12 months supervision; he would have otherwise been imprisoned for 3.5 years has the forfeiture not been made.
COURT OF APPEAL - Quashed the sentence - sent back to the High court for the for forfeiture to be reconsidered.
HIGH COURT - 60% of Elliots interest in the property was forfeited to the crown and 9 months home detention.

Question 33

What does the Criminal Proceeds (Recovery) Act 2009 empower?

Answer 33

The commisioner of Police to apply for restraining orders, assets forfeiture orders and profit orders.

Question 34

Who has the ability to apply for restraining orders, assets forfeiture orders and profit orders been delegated to?

Answer 34

Solely to the members of the Asset Recovery Unity - only members of Asset Recovery Units may apply for restraining orders, assets forfeiture orders and profit orders.

Question 35

In relation to specific property, what must the court be satisfied with?

Answer 35

That it has reasonable grounds to believe that the property is tainted property. e.g that it has been acquired as a result of or directly or indirectly derived from ‘significant criminal activity’.

Question 36

In relation to all or part of respondents property, what must the court be satisfied with?

Answer 36

That it has reasonable grounds to believe that the respondent has unlawfully benefited from “significant criminal activity” and that the “respondent” has an “interest” in the property to be restrained.

Question 37

In relation to an instrument of crime, what must the court be satisfied with?

Answer 37

Two criteria must be met.
Either the “respondent” must have been charged with a “qualifying instrument forfeiture offence” (or the court must be satisfied it has reasonable grounds to believe that the respondent will be so charged within 48 hours) and
- The court must be satisfied that it has reasonable grounds to believe that the “property” which will be the subject of the order was used to commit, or to facilitate the commission of, the “qualifying instrument forfeiture offence”.

Question 38

How long is a restraining order valid for?

Answer 38

It is valid for one year from the date on which the order is made.
The court may issue an extension before the expiry of the original order. This is also valid for one year,

Question 39

How long does the restraining order remain in force?

Answer 39

For the prescribed time (1 year) or until the making or declining of an assets or profit forfeiture order, whatever is the earlier.