Criminal Proceeds (Recovery) Act 2009

Question 1

Criminal Proceeds (Recovery) Act 2009

Answer 1

Section 3 Criminal Proceeds (Recovery) Act 2009
(1) The primary purpose of this Act is to establish a regime for the forfeited of property -
(a) that has been derived directly or indirectly from significant criminal activity; or,
(b) that represents the value of a persons unlawfully derived income.
(2) The criminal proceeds and instruments forfeited regime established under this Act proposes to -
(a) eliminate the chance for persons to profit from undertaking or being associated with significant criminal activity, and,
(b) deter significant criminal activity, and,
(c) reduce the ability of criminals and persons associated with crime or significant criminal activity to continue or expand criminal enterpris, and
(d) deal with matters associated with foreign restraining orders and foreign forfeiture orders that arise in NZ.

Question 2

Assets forfeiture order

Answer 2

AFO is issued by the high court upon application.
A successful application shows on the balance of probability that specific assets which have been acquired have been tainted by significant criminal activity.

Question 3

Section 5 Interpretation
Criminal Proceeds (Recovery) Act 2009 - Tanted Property

Answer 3

Tanted property
(a) means any property that has, wholly or in part, been -
(i) acquired as a result of significant criminal activity, or,
(ii) directly or indirectly derived from significant criminal activity, and,
(b) 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 4

Section 5 Interpretation
Criminal Proceeds (Recovery) Act 2009 - Qualifying instrument forfeiture offence

Answer 4

Qualifying instrument forfeiture offence
(a) means an offence punishable by a maximum term of imprisonment of 5 years or more, or,
(b) includes an attempt to commit, conspiring to commit, or being an accessory to an offence if the maximum term of imprisonment for that attempt, conspiracy, or activity is 5yrs or more.

Question 5

Section 6 Interpretation
Criminal Proceeds (Recovery) Act 2009 - Meaning of significant criminal activity

Answer 5

Significant criminal activity
(1) In this Act, unless the context otherwise requires, significant criminal activity means an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending -
a) that consists of, or includes, 1or more offences punishable by a maximum term of imprisonment of 5 years or more, or,
b) from which property, proceeds, or benefits of a value of $30,000 or more have, directly or indirectly, been acquired or derived.

Question 6

Section 7 Interpretation
Criminal Proceeds (Recovery) Act 2009 - Meaning of Unlawfully benefited from significant criminal activity

Answer 6

In this Act, unless the context otherwise requires, a person has unlawfully benefited from significant criminal activity if the person has knowingly, directly or indirectly, derived a benefit from significant criminal activity.

Question 7

Profit forfiture order

Answer 7

55 Criminal Proceeds (Recovery) Act 2009
(1) The High Court must make a profit forfeiture order if it is satisfied on the balance of probabilities that-
a) the respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity, and,
b) the respondent has interests in property.

Question 8

Section 5 Interpretation
Criminal Proceeds (Recovery) Act 2009 - Instrument of Crime

Answer 8

Instrument of Crime
a) Property used (wholly or in part) to commit or facilitate the commission of a qualifying instrument forfeiture offence.
b) In relation to a qualifying instrument forfeiture offence that is an offence against s8(1) or (2A) of the Terrorism Suppression Act 2002, includes funds (as defined in s4(1) of that act) allocated for tye purposes of committing that offence, and,
c) In relation to any property referred to in paragraphs a) and b) the proceeds of any disposition of that property or any other property into which that property is converted, afte 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 2002, excluding any severable interest or granting relief.

Question 9

Obligations of prosecutor to notify court of relevant property. Explain

Answer 9

Section 142B of the Sentencing Act 2002 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.
Could include vehicles and property used to facilitate the commission of an offence.

Question 10

Restraint of instrument of crime

Answer 10

Property that is an instrument of crime may need to be restrained while the criminal proceedings take their course, to prevent disposal of the assest or erosion of its value by being further encumbered. In place for 1yr, extentions are 1yr.

Question 11

Assessment process before preparing a restraining order relating to instrument of crime.

Answer 11

The assessment process is conducted to determine:
- the value of the asset.
- equity in the asset.
- any third party interest in the asset.
- the cost of action in respect of the asset.

Question 12

Two criteria for an instrument of crime.

Answer 12

• The respondent must have been charged with a ‘qualifying instrument forfeiture offence’ (or charged with 48hrs)
• RGTB the property, which will be subject to the order, was used to commit, or facilitate the commission of the ‘qualifying instrument forfeiture offence’