Sentencing

It is for an accused who seeks to rely on forfeiture to prove that the property was lawfully acquired and any other factors that assist in mitigation – R v McLeod [2007] VSCA 183 at [29]; R v McKittrick [2008] VSCA 69.

Pecuniary Penalty Orders

The court:

• May have regard to a PPO to the extent to which it relates to benefits in excess of profits derived from the commission of the offence – s.5(2A)(c) Sentencing Act 1991
• Must not have regard to a PPO to the extent to which it relates to profits (as opposed to benefits) derived from the commission of the offence.

The “benefits” received from an offence is defined in section 67 of the Act and include all money actually received from the commission of the offence, regardless of expenditures incurred in deriving that money.

In order for a court take a PPO into account, the accused must provide some evidence of the “costs” in order to show that the PPO “relates to benefits in excess of profits derived”.

Remorse

The Sentencing Act specifically allows the court to take orders under the Act into consideration as evidence of remorse or cooperation – S.5(2B).

Compensation Provisions of the Sentencing Act

Under s30 of the Act, the State must ensure that an order for compensation made under the Sentencing Act 1991, or an award of damages made in favour of the victims, is paid from forfeited property. As such, where a compensation (for example section 85B or 86AA of the Sentencing Act) or restitution (such as 87C of the Sentencing Act) award has been or will be made, you should consider the sentencing benefits of consenting to an order for forfeiture in a form able to be taken into account under section 5(2A) of the Sentencing Act.