CURRENT TOPICS

It is a mis-statement to say that when assessing the quantum of a pecuniary penalty order (Commonwealth) or proceeds assessment order (NSW) that the Court should only take into account direct proceeds of crime. Both acts (Proceeds of Crime Act 2002 – Commonwealth and the Criminal Assets Recovery Act 1990 (NSW) are worded in such a fashion a Court can consider a whole range of matters, such as income/expenditure or assets/liabilities.

In addition more recent amendments have resulted in third parties to a crime (ie such as agents of principals) being liable as a principal even though technically they received no proceeds of crime at all.

A more recent process undertaken by the DPP is the introduction of drug proceeds orders after a conviction. This quite often results in a process of "double jeopardy", in that a person is sentenced to a term of imprisonment and only following the sentence is there an application for a drug proceeds order. Practitioners should be conscious of this as the payment of a drug proceeds order cannot be taken into account on a sentence, however is arguable to be taken in account in respect to contrition and remorse.