Pecuniary Penalty Orders Under the Victorian Confiscation Act

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Brittany LlewellynThe article Pecuniary Penalty Orders Under the Victorian Confiscation Act is written by Brittany Llewellyn, Associate, Doogue + George Defence Lawyers.

Brittany holds a Juris Doctor and Bachelor of Arts with Honours from the University of Melbourne. She is notably experienced in criminal cases related to sexual crimes, drug courts, and therapeutic jurisprudence.

Before becoming a part of Doogue + George, Brittany served as a Judge's Associate to his Honour Judge Higham and worked exclusively in the County Court's criminal division. She has also worked as a Research Assistant, volunteered extensively for various legal centres, and completed internships domestically and abroad.

Benefit Subject to Pecuniary Penalty OrdersIf a person is seen to have obtained a financial benefit from criminal activity, an application can be made that that person should pay a financial penalty to offset that benefit received. Such orders to pay this money are known as Pecuniary Penalty Orders and can have a detrimental and unexpected effect on many people accused of wrongdoing. If you think a Pecuniary Penalty Order may be applied for in your case, you should ensure that you consult a lawyer straight away to minimise any avoidable confiscation outcomes.

What are Pecuniary Penalty Orders?

Pecuniary Penalty Orders are orders intended to deprive people of any benefit obtained through offences contained in Schedule 1 and 2 of the Victorian Confiscation Act. They take the form of a financial penalty and, because of the way that they are assessed with respect to the calculation of the “benefit” obtained through offending, often involve a penalty that well exceeds any financial gain.

How do they work?

It is important to note that the “benefit” an accused person will be penalized for will be calculated by the Court with reference to the entirety of the money that has passed through the accused’s hands in the course of their offending, rather than just the profit itself. Often this issue raises its head in trafficking cases whereby the accused will not get a discount for any losses or expenses that occurred while trafficking or manufacturing drugs, rather will be required to repay all funds they ever dealt with in the course of the offending period. This means that an accused person may be significantly financially worse off following a Pecuniary Penalty Order than if they had never committed an offence at all.

Unlike other confiscation orders such as Forfeiture Orders, being a financial penalty, Pecuniary Penalty Orders can be imposed even when you do not possess any seizable property assets. It is also important to note that a Pecuniary Penalty Order can be ordered alongside other Confiscation Act orders e.g. in addition to a Forfeiture Order.

When will the order be made?

Pecuniary Penalty Orders are imposed at sentence, whereby their imposition is a discretion open to the sentencing judge. This means that there is an opportunity to run arguments in court that could prevent the imposition of a Pecuniary Penalty Order altogether, or otherwise minimise the value of any order against you that a judge decides to make. This makes legal representation from lawyers who are experienced in confiscation essential to securing you the best available outcome on sentence.

What is the law that allows this to happen?

Part 8 of the Confiscation Act 1997 (Vic) contains the provisions that allow for and govern the operation of Pecuniary Penalty Orders.

Pecuniary Penalty Orders and important time limits

Pecuniary Penalty Orders can be applied for up to 6 months following “conviction”. Conviction is defined in section 4 of the Act, but importantly will be said to have occurred for the purposes of the Confiscation Act from the moment a finding of guilt or guilty plea is formally entered in court.

In some limited cases, a court may grant leave to allow for applications for Pecuniary Penalty Orders to be brought even after the six-month period has elapsed. This can happen if the relevant benefit was obtained only after the six-month period ended, or if new evidence has come to light since that period elapsed of a benefit that arose. The Court also has a broad discretionary power to allow out-of-time applications when it is “in the interests of justice to do so”.

Practical tips

  • Pecuniary Penalty Orders will often arise when you don’t have sufficient assets available to be seized which would deprive you of a benefit obtained from offending.
  • Interest is payable on a Pecuniary Penalty Order until the debt is fully paid.
  • If you are served with a Restraining Order with its stated purpose of preserving your property for a Pecuniary Penalty Order, make sure you speak to a lawyer right away so that you can challenge the Restraining Order if appropriate in your case.

Do I need a lawyer?

If you think that the prosecution may allege that you have derived a benefit from criminal offending, such as from drug trafficking or any other crime, you should speak to your lawyer about whether a Pecuniary Penalty Order could be made against you. A lawyer will be able to make submissions in response to any application, including to assist the Court in determining the benefit received from the order. In particular, as these orders are discretionary, a good lawyer on sentence may be able to win an argument that no such order should be made in the circumstances.
Date Published: 4 May 2022

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