Pecuniary Penalty Order

A Pecuniary Penalty Order is an order requiring an offender to pay money derived from criminal activities to federal authorities.

When is a Pecuniary Penalty Order Made?

The Proceeds of Crime Act 2002 (Cwth) allows a Pecuniary Penalty Order to be made when an individual has committed a criminal offence. It requires the offender to pay the Commonwealth an amount based on:

• the value of the benefits the person derived from the activity; or
• the value of the benefits the person obtained from other unlawful activity.

The offender does not need to be convicted of an offence for a Pecuniary Penalty Order to be made.

How Does the Court Assess the Amount?

To determine the amount payable under the order, the court will consider the following:

• the value of property derived from the offence;
• the value of any other benefit derived from the offence;
• whether the illegal activity involved narcotic substances and if it did, the market value of those substances;
• the average amount generally paid for a similar item of property;
• the value of the person’s property before and after committing the offence;
• the person’s income and expenses before and after the illegal activity.

Can an Order Be Reduced?

In some cases, the amount of the order can be reduced. This normally occurs when property relating to the relevant offence has already been forfeited to the Commonwealth under the Proceeds of Crime Act. When that has occurred, the amount will be reduced by the value of the property as determined by the court.

A Pecuniary Penalty Order can also be reduced based on the value of tax paid on the property subject to the pecuniary penalty order before it was made.

The court has the authority to reduce the penalty by enforcing a fine or compensation order related to the offence.

Can an Order Be Increased?

If assets were forfeited under an Asset Forfeiture Order and the accused successfully appeals then the Pecuniary Penalty Order can be increased by the value of the property (as assessed by the court).

Assets are sometimes excluded from a Forfeiture Order under an Exclusion Order. When that is the case the court can increase the amount of the Pecuniary Penalty Order as it thinks appropriate.

In circumstances where the amount payable under a Pecuniary Penalty Order was reduced because of tax paid and that tax is refunded, the amount payable under the order can be increased under Section 131 of the Proceeds of Crime Act by an amount equal to the tax refunded.

When Can Pecuniary Penalty Orders Not Be Made?

A pecuniary penalty order cannot be made against a person who has been convicted of a drug trafficking offence. These offences will be dealt with under a drugs proceeds order.

Enforcement

A pecuniary penalty order is enforced as if it was a civil debt. That means that if the person does not pay the money, further legal action can be taken.

If you require any information about pecuniary penalty orders or any other legal matter, call us on 1300 038 223 or email us.