Money Laundering and criminal proceeds (Recovery) Act 2009 Flashcards
What is money laundering?
It is a process of deal with the proceeds of criminal activity in such a way as to make the proceeds appear to have been legitimately acquired
Three stages of money laundering cycle
1) Placement
Cash enters the financial system
EG. offender sells cannabis and deposits money to an associates account
2) Layering
Money is involved in a number of transactions
EG. associate transfers money into a shell company directed by the offender
3) Integration
Money is mixed with lawful funds or integrated back into the economy with the appearance of legitimacy
EG. money is declared as revenue from the company, tax is paid and then offender pays himself as a salary/director fees
Money laundering
s243(2)
- in respect to any property that is the proceeds of an offence
- engages in a money laundering transaction
- knowing or believing that all or part of the property is the proceeds of an offence
- or being reckless as to whether or not the property is the proceeds of an offence
What is conceal in relation to property
Means to conceal or disguise the property and includes without limitation:
- convert the property from one form to another
- conceal or disguise the nature, source, location or ownership of the property or of any interest to the property
What is deal with in relation to property
Means to deal with the property in any manner and by any means and includes without limitation:
- to dispose of the property, sale, purchase, gift etc
- transfer possession of property
- bring property into NZ
- remove property from NZ
What is interest in relation to property
- A legal or equitable estate or interest in the property
- A right, power or privilege in connection with the property
What is proceeds
in relation to an offence, means any property that is derived or realised directly or indirectly by any person from the commission of an offence
What is property?
Any real or personal property, situated in NZ or elsewhere, tangible or intangible and includes any interest in real or personal property
Punishment for money laundering
7 years - engages in money laundering
5 years - has in possession of property with intent to engage in money laundering
Can a person be charged under 243(2) and 243(3) even if the offender has not been charged or convicted with the offence?
Yes
What is s243(2) and s243(3)
243(2) - engages in money laundering, knowing or believing part or all of the property is the proceeds of an offence or being reckless as to whether or not the property is the proceeds of an offence
243(3) - has in possession of property with intent to engage in money laundering transaction, knowing or believing part or all the property is the proceeds of an offence or being reckless as to whether or not the property is the proceeds of an offence
When does s243 only apply to certain acts outside NZ
- If it is an offence under the law of the place it occurred
- act which s7 and s7A applies
- act is an offence in NZ and no further requirements for the act to be an offence where it has occured
Can a person be guilty of money laundering if one of the phases of money laundering cycle is proven
Yes
Primary purpose of the Criminal proceeds (Recovery) Act 2009
To establish a regime for the forfeiture of property:
- that has been derived directly or indirectly from significant criminal activity
- represents the value of a person’s unlawfully derived income
4 points of the criminal proceeds and instruments act are to:
- eliminate chance of persons to profit from undertaking or being associated with significant criminal activity
- deter significant criminal activity
- reduce ability for criminal or their associates to expand in criminal enterprise
- deals with foreign restraining and forfeiture orders that arise in NZ
Tainted property
s5 CPRA 2009
a) Any property that has wholly or in part been:
i) acquired as a result of significant criminal activity
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
What offences qualify as a forfeiture offence?
5+ years
Includes an attempt, conspiring or accessory to the offence that is 5+ years
What is ‘significant criminal activity’
An offence is proceeded by a criminal offence would be 5+ years
OR
Property, proceeds or benefits of a value of $30k has been directly or indirectly acquired
What is unlawfully benefited from significant criminal activity?
When a person has knowingly, directly or indirectly derived a benefit from significant criminal activity whether or not that person undertook or was involved in the significant criminal activity
When does the High Court must make a profit forfeiture order?
Satisfied on the balance of probabilities that:
- the respondent has unlawfully benefited from significant criminal activity
- respondent has interests in property
What are the circs for PULLMAN v POLICE
PULLMAN sold a significant amount of precursor materials in the knowledge that it was to manufacture illegal drugs. He stated the cash was placed in a box and used to pay employer wages.
He argued he did not personally benefit from the sale of processors as the employer received all the sale proceeds.
It was held in court that the forfeiture order was not just do prevent the person to profit but to prevent the person a chance to do so and to deter significant criminal activity
What is an instrument of crime?
Property used (wholly of partly) to commit or facilitate the commission of a qualifying forfeiture offence.
Who needs to notify the court to consider property that is an instrument of crime for forfeiture?
The prosecutor.
Property could be a house used to manufacture illegal drugs or a car used in the delivery of illegal drugs
What are the duties of a prosecutor if the offender is found guilty of a qualifying instrument forfeiture offence?
Prosecutor must consider whether to make a forfeiture request and notify the court in writing:
- details of that property
- name and identifying details of anyone who has any interest in that property
