Automatic Forfeiture

Automatic Forfeiture provisions are designed to apply to what could be described as “professional criminal enterprises”.

Many of the offences listed in Schedule 1 become Schedule 2 offences once they reach a certain value. Some examples of Schedule 2 offences include:

The following drug offences:

• Trafficking in a large commercial quantity of a drug
• Trafficking in a commercial quantity of a drug
• Trafficking in a drug of dependence to a child
• Trafficking in a drug of dependence in a quantity not less than the automatic forfeiture quantity specified for that drug
• Cultivate a large commercial quantity of a narcotic plant
• Cultivate a commercial quantity of a narcotic plant

  The following offences under the Crimes Act 1958:

• Theft, armed robbery, robbery, obtaining property by deception, obtaining a financial advantage by deception, blackmail and handling stolen goods where only one offence is charged and the value of the property is $50 000 or more;
• Theft, armed robbery, robbery, obtaining property by deception, obtaining a financial advantage by deception, blackmail and handling stolen goods where more than one offence is charged, the offending arises out of the same facts or is similar, and the value of the property is $75 000 or more.

 

Can I make an Exclusion Application?

In Automatic Forfeiture matters, your options become much more limited. The Judge usually has no option but to grant the Application to forfeit the property. However, any person may make an application for an Exclusion Order if they can demonstrate the matters required in s.22(1)(a). To succeed in such an application, a person must show:

• The property in which they claim an interest was lawfully acquired
• The property is not tainted property
• The property is not subject to a tainted property substitution declaration
• The property is not derived property (property used in or in connection with any unlawful activity, or derived or substantially derived from any unlawful activity)
• The property will not be required to satisfy any pecuniary penalty order or order for restitution or compensation under the Sentencing Act 1991 (VIC)

Sometimes, when this kind of application is made, the court may make an exclusion order even if it considers the property as tainted or derived property. Those circumstances when the court may do so include:

• Where the applicant was not in any way involved in the commission of the Schedule 2 offence
• Where the applicant acquired the interest before the alleged commission of the Schedule 2 offence, and did not know that the accused would use the property in connection with the Schedule 2 offence
• Where the applicant acquired the interest at the time of or after the alleged commission of the Schedule 2 offence, and they did so in circumstances which did not arouse a reasonable suspicion that the property was tainted property or derived property; and where the applicant acquired the interest from the accused and it was acquired for sufficient consideration

There can also be other situations in which a court could make an Exclusion Order on the application of someone other than yourself. It is important to consult a lawyer about what may occur in your specific case.

Where an Exclusion Order is made, a court must make an order declaring the extent of the applicant’s interest in the property.

Should the application for exclusion be unsuccessful, the Automatic Forfeiture will take place at the end of the period in which that order could be appealed.

Can they take my house if it is paid off legitimately?

An application, in relation to either a Forfeiture Order or Automatic Forfeiture Order, can be made for a tainted property substitution declaration.

It is important that this is considered when attempting to settle cases especially for significant drug matters. The effect of these provisions is best demonstrated by an example:

• X owns a house which he bought in 2001 and paid off in 2010
• X decides to cultivate cannabis
• X leases a house and sets up a hydroponic set up inside the rented premises
• X intentionally grows a commercial quantity of cannabis
• An application could be made seeking a Forfeiture Order or Automatic Forfeiture Order over the house which X owns
• This can be done due to the substitution provisions and because the rented premises cannot be forfeited

 

Do I need a lawyer?

Any person notified of the application for a Forfeiture Order has the right to appear at the hearing. It is important that you are represented by a lawyer and that they appear in court for you. This is because a lawyer can decide what, if any, evidence should be given at the hearing so that you can have the best chance of keeping your property.

What happens at the hearing?

If satisfied that the property is tainted property in relation to the offence, a court may order that the property, or part of the property, be forfeited.

The court will consider:

• The ordinary use made or intended to be made of the property – s.33(5)(a)
• Hardship caused to any person by the order
• The claim of any person to an interest in the property considering the matters set out in s 50(1).This provision protects the interests of parties who have an interest in tainted property but were not in any way involved in the commission of the relevant offence

If you are convicted, the court can also order that you pay money to the government as a Pecuniary Penalty Order (More information on Pecuniary Penalty Orders to follow). Forfeiture Orders do not stop the court from also making a Pecuniary Penalty Order.

Can I be excluded from a Forfeiture Order?

A person, other than the accused, may apply for exclusion from a Forfeiture Order. The application for exclusion should be made at the time of the application for the order or within 60 days from the date when the Forfeiture Order was made. An applicant must give written notice of the application to other interested parties and state the grounds on which it is made.

A court may exclude an applicant’s interest in the property from a Forfeiture Order if satisfied that:

• They have an interest in tainted property but were not in any way involved in the commission of the relevant offence
• Their interest is not tainted property