The term ‘proceeds of crime’ refers to property from which a person derived directly or indirectly from criminal conduct. For example, money gained from drug dealing, or money stolen in a burglary or robbery.
A recent example of this is the recent arrest of social media personality, Andrew Tate, and his brother Tristan Tate, for their alleged human trafficking and organised crime. In addition to arresting the brothers, authorities in Romania also seized a fleet of Tate’s luxury cars and other assets worth an estimated $3.9 million, alleging they were derived from the criminal enterprise. Authorities state that if successfully proved, these proceeds will be used cover the expenses of the investigation and compensation for victims.
In Australia, both State and Commonwealth Government have legislation criminalising proceeds of Crime. In NSW, the Confiscation of Proceeds of Crime Act 1989 (‘the Act’ ) empowers a Court, upon the conviction of a defendant, to make orders for the confiscation of property derived from or used to commit a “serious offence” within the meaning of the Act.
The act also allows for the prosecution to apply for freezing notice which prevents the Defendant from disposing of, or dealing with, the property pending the matter being finalised by the Court. The application may be made in relation to property that is in the possession of the defendant, or within the effective control of the defendant despite being in the possession of another person.
The Act provides that when a freezing notice ceases to be in force (or is rejected by the Court), the defendant may apply to the Attorney General for its return. If the property has already been sold pursuant to a property maintenance order, the defendant is entitled to be paid an amount equal to the value of the property together with interest calculated from the date of disposal of the property.
Otherwise, the following types of confiscation orders are provided in the Act:
I. Forfeiture order: This order can be made when the defendant is convicted of a serious offence and has the effect that specified property is forfeited to and vests in the State. The State may take possession of the property and may dispose of or otherwise deal with it subject to certain limitations outlined in s 19 of the Act.
II. Pecuniary penalty order: This order can be made when the defendant is convicted of a serious offence other than a drug trafficking offence and order requires the defendant to pay a pecuniary penalty to the State in the amount assessed by the Court as being the value of the benefits derived by the person from the commission of the offence.
III. Drug proceeds order: This order may be made when the defendant is convicted of a drug trafficking offence and similar to the above, the Court will determine whether the defendant has derived a benefit in connection with drug trafficking, and if so, assess the value of the benefit and order the defendant to pay the State a pecuniary penalty in that amount.
If you are suspected of having or using property (including money) that has been obtained through unlawful criminal activity in NSW, you could also face charges under s 193C of the Crimes Act 1900.
The Crimes Act 1900 states that a person commits an offence if they deal with proceeds of crime knowing that is proceeds of crime. “Deal with” includes: to receive, possess, conceal, dispose of, bring, or cause to be brought into NSW, or engage directly or indirectly in a transaction. For example, if a person commits a burglary, and gives it to a friend to hold, who knows it is stolen, then they may be charged with dealing with proceeds.
If you or someone you know have been charged with an offence involving Proceeds of Crime, are seeking legal advice, or are looking to pursue a civil claim for damages, contact our office to speak with our experienced lawyers today.
