Criminal Proceeds (Recovery) Act 2009 Flashcards
Purpose
Section 3 Criminal Proceeds (Recovery) Act 2009
(1) The primary purpose of this act is to establish a regime for the forfeiture of property -
(a) that has been derived directly or indirectly from significant criminal activity; or
(b) that represents the value of a person’s unlawfully derived income.
(2) The criminal proceeds and instruments forfeiture regime established under this act propose 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 enterprise; and
(d) deal with matters associated with foreign restraining orders and foreign forfeiture orders that arise in New Zealand.
Asset Forfeiture Order (AFO)
AFO is issued by the High Court on application. Successful application show on balance of probabilities that specific assets which have been acquired have been tainted by significant criminal activity.
Tainted Property
Section 5 Criminal Proceeds (Recovery) Act
Tainted property:
(a) means any property that has, wholly or in part, been:
- acquired as a result of significant criminal activity
- directly or indirectly derived from significant criminal activity
(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.
Significant Criminal Activity
Section 6 Criminal Proceeds (Recovery) Act 2009
(1) Means an activity engaged by a person that if proceeds against a criminal offence would amount to offending:
(a) that consists of, or includes, 1 or 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.
Profit Forfeiture Order
Section 55 Criminal Proceeds (Recovery) Act 2009
(1) High Court must make a profit forfeiture order if it is satisfied on the balance of probability:
(a) The respondent was unlawfully benefitting from significant criminal activity within the relevant period of criminal activity; and
(b) The respondent has interests in property.
Instrument of Crime
Section 5 Criminal Proceeds (Recovery) Act 2009
Instrument of Crime means -
(a) Property used (wholly or partly) to commit or facilitate the commission of a qualifying instrument forfeiture offence (5 years or more).
Instrument forfeiture order: reasonable grounds must be provided to show the instrument was used to facilitate significant criminal activity.
Partly used may result in wholly forfeiture.
Obligation of Prosecutor to notify Court of Relevant Property
So the instruments can be considered during part of the sentencing process.
Include:
- Details of property.
- Name and identifying details of those with interest in the property.
Section 142B Sentencing Act 2002.
Restraining Instrument of Crime
Instrument of Crime may be restrained while the criminal proceedings take their course, to prevent disposal of the asset or erosion of its value.
Valid for one year. May issue extension for further year.
Assessment prior to Application:
- value of asset
- equity of asset
- any third party interest
- cost of action in respect of asset
Restraining Orders (Who can apply for them)
Only the Commissioner of Police and delegates (Asset Recovery Unit) may apply for restraining orders, profit forfeiture and asset forfeiture orders. Except for those relating to instrument of Crime.
Investigative Procedure
When interviewing a suspect about money laundering or where proceeds recovery action is to be considered, consider the following points:
- Suspect’s legitimate income
- suspect’s illegitimate income
- expenditure
- assets
- liabilities
- acquisition of financial records
- clarification of documentary evidence located.
