You may remember when the news reported that Shapelle Corby was unable to sell her story to the press, because it would be considered as the proceeds of crime.
Current laws mean they do not allow a person to profit from their crime.
If you have been convicted of a serious offence like drug trafficking the court may make an order that your property will be confiscated, freeze your assets or a make a pecuniary penalty order – meaning you have to pay an amount proportionate to the profit gained to the Commonwealth.
When a person is convicted of a drug trafficking offence, the court will look at what benefits they gained from doing so, and can order the equivalent to be paid.
There are two ways that authorities can confiscate property connected with the proceeds of crime:
- Conviction-based recovery – through the criminal system, after a person has been convicted
- Non-conviction-based recovery – using the civil system, where a conviction is not needed. Because the level of proof required in a criminal trial is higher, it can be easier to get a successful outcome for authorities using civil recovery
However in Victoria, the law recently got a whole lot stricter.
Under new laws introduced earlier this year, people who have been convicted of commercial drug trafficking offences stand to lose not only the proceeds of their crime, but all their property.
Under those laws, wealthy drug traffickers could be left with nothing more than basic household goods and a modestly priced car.
However these new laws in Victoria only target the people at the top of the drug trade – not street dealers, but those who have large quantities of at least two drugs.
The Attorney-General Robert Clark believes that taking a tough line with criminals is appropriate – that those who have inflicted misery on the lives of others through drug addiction deserve to lose everything they own, not just that which is connected with the drug trade.
But confiscation of property is not merely a penalty, or a legal enforcement of the ‘crime doesn’t pay’ principle.
It is also a way for states to recoup some of the money they have spent enforcing the law as well as being channelled back into the community such as graffiti removal, police and youth funding, people trafficking and labour exploitation projects.
It is a key way to ensure that the funds are not available to perpetuate further crimes.
Each year millions of dollars are confiscated from offenders, and the amount taken from drug offenders by far outnumbers the other offences combined.
Property that was used in connection with the commission of an offence, known as ‘tainted property’, can also be confiscated: for example a car used to distribute drugs.
In one case where cannabis was grown on a family farm, the court found that the property was liable to forfeiture.
The court can look not only at money but other property, including anything transferred to the suspect during the six years prior to the date when proceedings begun.
Even if you did not take part in a crime but were found to have dealt with the proceeds you could be facing a confiscation order, or even one of a range of State and Commonwealth criminal charges, including:
- Dealing with property suspected of being proceeds of crime – maximum penalty of 2 years prison
- Dealing with property that subsequently becomes an instrument of crime – up to 15 years prison,
- Money laundering – up to 20 years prison
You could even be charged for allowing someone to put large amounts of money in your bank account that you knew or suspected could have come from drug supply, even if you received no benefit at all.
Even putting assets under the name of a family member will not mean they are out of the reach of the court when they are making confiscation or freezing orders.
If you believe you could be facing a confiscation order for the proceeds of your crime, getting legal advice as soon as possible is essential.
A specialist drug lawyer will be able to help prove that your assets came from legitimate funds, or perhaps argue that the amount the prosecution wants you to forfeit is disproportionate.