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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Criminal Assets Confiscation (Miscellaneous) Amendment
Bill 2012
A BILL FOR
An Act to amend the Criminal
Assets Confiscation Act 2005.
Contents
Part 1—Preliminary
1Short title
2Commencement
3Amendment
provisions
Part 2—Amendment of Criminal Assets
Confiscation Act 2005
4Amendment of
section 3—Interpretation
5Amendment of section
6—Meaning of effective control
6Amendment of
section 34—Court may exclude property from restraining
order
7Amendment of section 46—Cessation of
restraining orders
8Amendment of section 47—Forfeiture
orders
9Amendment of section 48—Instrument
substitution declarations
10Insertion of section
62A
62ANo exclusion or
compensation where forfeiture taken into account in sentencing
11Amendment of section 74—Forfeiting
restrained property without forfeiture order if person convicted of serious
offence
12Substitution of section
75
75Extended
period
13Amendment of section 76—Excluding
property from forfeiture under this Division
14Insertion of
section 76A
76ANo exclusion
where forfeiture taken into account in sentencing
15Amendment of section 95—Making pecuniary
penalty orders
16Amendment of section 96—Additional
application for pecuniary penalty order
17Insertion of section
98A
98AProperty subject to a
person's effective control
18Amendment of section
99—Determining penalty amounts
19Amendment of section
104—Benefits and instruments already the subject of pecuniary
penalty
20Repeal of section 105
21Amendment of section 106—Effect of
property vesting in an insolvency trustee
22Amendment of
section 107—Reducing penalty amounts to take account of forfeiture
and proposed forfeiture
23Amendment of section 108—Reducing
penalty amounts to take account of fines etc
24Amendment of
section 149—Interpretation
25Amendment of section
219—Consent orders
26Substitution of section
224
224Effect of
confiscation scheme on sentencing
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Criminal Assets Confiscation
(Miscellaneous) Amendment Act 2012.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Criminal Assets Confiscation
Act 2005
4—Amendment
of section 3—Interpretation
(1) Section 3, definition of extension
order—delete the definition
(2) Section 3, definition of serious offence,
(b)—delete paragraph (b)
(3) Section 3—after its present contents as amended by this
section (now to be designated as subsection (1)) insert:
(2) A reference in this Act to an indictable offence
includes an indictable offence of a kind that is required to be prosecuted, and
dealt with by the Magistrates Court, as a summary offence under a provision of
any Act.
5—Amendment
of section 6—Meaning of effective control
Section 6(1)(b), (c) and (d)—delete "under the" wherever
occurring and substitute in each case:
subject to the
6—Amendment
of section 34—Court may exclude property from restraining
order
(1) Section 34(2)(a)(ii)—delete "under" and
substitute:
subject to
(2) Section 34—after subsection (2) insert:
(3) Despite any other provision of this section, if a court has, in
determining sentence in respect of a person’s conviction of a serious
offence, taken into account any forfeiture of property under this Act that might
result from conviction for the offence, the property cannot be excluded from a
restraining order relating to the offence on application made by the convicted
person.
7—Amendment
of section 46—Cessation of restraining orders
Section 46(4)—delete "Part 4 Division 2 or
Division 3" and substitute:
this or any other Act
8—Amendment
of section 47—Forfeiture orders
Section 47(5)—delete "this section" and substitute:
subsection (3)
9—Amendment
of section 48—Instrument substitution declarations
Section 48—after "forfeiture order" insert:
under section 47(3)
After section 62 insert:
62A—No exclusion or compensation where forfeiture
taken into account in sentencing
Despite any other provision of this Subdivision, if a court has, in
determining sentence in respect of a person’s conviction of a serious
offence, taken into account any forfeiture of property under this Act that
relates to the offence or that might result from conviction for the offence, the
person cannot apply for an exclusion order or a compensation order under this
Subdivision in respect of that property.
11—Amendment
of section 74—Forfeiting restrained property without forfeiture order
if person convicted of serious offence
(1) Section 74(5)—after "this section" insert:
and section 75
(2) Section 74(6), definition of relevant period,
(b)—delete paragraph (b) and substitute:
(b) if, at the end of the 6 month period starting on the day of the
conviction, an extended period applies in accordance with
section 75—that extended period.
Section 75—delete the section and substitute:
75—Extended period
(1) An extended period will apply for the purposes of the definition of
relevant period in section 74 if the applicant has, not later
than 6 months after the start of the day of the relevant conviction,
applied to a court under this Act to exclude the property from the restraining
order or to exclude the property from forfeiture and that application has not
yet been finally determined.
(2) The extended period applying is the period ending when the application
to exclude property from the restraining order or from forfeiture (as the case
may be) is finally determined.
13—Amendment
of section 76—Excluding property from forfeiture under this
Division
(1) Section 76(1)(a)—delete paragraph (a) and
substitute:
(a) a person has been convicted of a serious offence to which the
restraining order relates; and
(ab) a person applies for the exclusion order; and
(ac) the applicant owns the property; and
(2) Section 76(1)(b)—after "restraining order"
insert:
(or is security given under section 38(a)(iii) for the exclusion of
property that was covered by the restraining order or under
section 44(a)(iii) for the revocation of the restraining order)
(3) Section 76(1)(c)(ii)—delete subparagraph (ii) and
substitute:
(ii) the applicant's interest in the property was lawfully acquired;
and
(4) Section 76(3)—delete "person" and substitute:
applicant
After section 76 insert:
76A—No exclusion where forfeiture taken into
account in sentencing
Despite section 76, if a court has, in determining sentence in respect
of a person’s conviction of a serious offence, taken into account any
forfeiture of property under this Act that relates to the offence or that might
result from conviction for the offence, the convicted person cannot apply for an
order under this Subdivision excluding the property from forfeiture under this
Division.
15—Amendment
of section 95—Making pecuniary penalty orders
(1) Section 95(1), (2), (3) and (4)—delete
subsections (1), (2), (3) and (4) and substitute:
(1) A court must, on application by the DPP, make an order (a
pecuniary penalty order) requiring a specified person to pay to
the Crown an amount determined under Subdivision 2 if satisfied
that—
(a) the person has been convicted of, or has committed, a serious offence;
and
(b) the person derived benefits from the commission of the
offence.
(2) A court may, on
application by the DPP, make an order (a pecuniary penalty order)
requiring a specified person to pay to the Crown an amount determined under
Subdivision 2 if satisfied that—
(a) the person has been convicted of, or has committed, a serious offence;
and
(b) the person's property includes an instrument of the offence.
(3) In considering whether it is appropriate to make a pecuniary penalty
order under
subsection (2),
the court may have regard to—
(a) any hardship that may reasonably be expected to be caused to any
person (other than the person against whom the order is sought) by the operation
of the order; and
(b) the use that is ordinarily made, or was intended to be made, of the
property; and
(c) the gravity of the offence or offences concerned; and
(d) any other matter the court thinks fit.
(4) A court is not prevented from making a pecuniary penalty order in
relation to a serious offence merely because of the existence of another
confiscation order in relation to the offence.
(2) Section 95(5)(b)—delete paragraph (b) and
substitute:
(b) if, at the end of the period of 9 months commencing on the
conviction day, an extended period applies in accordance with
section 75—before the end of the period of 3 months commencing
on the day the extended period ends.
(3) Section 95(7)—after "in relation to" insert:
benefits derived from the commission of
16—Amendment
of section 96—Additional application for pecuniary penalty
order
(1) Section 96(1)—after "offence or" insert:
a pecuniary penalty order against a person in respect of
(2) Section 96(1)(a)—delete "under this Division in respect of
the benefits or instrument" and substitute:
order in respect of the benefits or instrument (as the case may
be)
(3) Section 96—delete subsection (3) and
substitute:
(3) Except as provided in this section, nothing prevents the DPP from
making more than 1 application for a pecuniary penalty order against a
person in relation to a serious offence.
After section 98 insert:
98A—Property subject to a person's effective
control
For the purposes of this Division, the court may treat as property of a
person any property that is, in the court’s opinion, subject to the
person’s effective control.
18—Amendment
of section 99—Determining penalty amounts
(1) Section 99(a)—delete "relating to benefits derived from the
commission of a serious offence" and substitute:
under section 95(1)
(2) Section 99(b)—delete "relating to an instrument of a
serious offence" and substitute:
under section 95(2)
19—Amendment
of section 104—Benefits and instruments already the subject of pecuniary
penalty
(1) Section 104(1)—after "benefit" wherever occurring insert in
each case:
or instrument
(2) Section 104(2)—delete subsection (2) and
substitute:
(2) For the purposes of this section, a pecuniary penalty imposed in
respect of a benefit includes a literary proceeds amount ordered in respect of
the benefit.
Section 105—delete the section
21—Amendment
of section 106—Effect of property vesting in an insolvency
trustee
Section 106—delete "purpose of assessing the value of benefits
that a person has derived from the commission of a serious offence, the" and
substitute:
purposes of this Subdivision, a
22—Amendment
of section 107—Reducing penalty amounts to take account of forfeiture
and proposed forfeiture
Section 107—after its present contents (now to be designated as
subsection (1)) insert:
(2) If a pecuniary penalty order relates to instruments of a serious
offence, the penalty amount under the order is reduced by an amount equal to the
value, at the time of making the order, of any instruments of the offence
if—
(a) the instruments have been forfeited, under this Act or any other law,
in relation to the offence to which the order relates; or
(b) an application has been made for a forfeiture order that would cover
the instruments.
23—Amendment
of section 108—Reducing penalty amounts to take account of fines
etc
Section 108(1)—delete subsection (1) and
substitute:
(1) The court may, if it considers it appropriate, reduce the penalty
amount under a pecuniary penalty order made in relation to a serious offence by
an amount equal to a monetary sum paid, or payable, by the person in relation to
the offence (or equal to any proportion of such a monetary sum).
24—Amendment
of section 149—Interpretation
Section 149(1)(a) and (b)—delete "property of" wherever
occurring and substitute in each case:
property owned by or subject to the effective control of
25—Amendment
of section 219—Consent orders
Section 219(1)(a)—delete "applicant in" and
substitute:
parties to
26—Substitution
of section 224
Section 224—delete the section and substitute:
224—Effect of confiscation scheme on
sentencing
Despite any provision of the Criminal
Law (Sentencing) Act 1988, in determining sentence in respect of a
person’s conviction of a serious offence, a court—
(a) may have regard to any cooperation by the person in resolving any
action taken against the person under this Act; and
(b) must not have regard to any forfeiture (whether under this Act or a
corresponding law), pecuniary penalty order or recognised Australian pecuniary
penalty order that relates to the offence or that might result from conviction
for the offence, to the extent that the forfeiture or order applies to proceeds
of the offence; and
(c) must have regard to any forfeiture (whether under this Act or a
corresponding law), pecuniary penalty order or recognised Australian pecuniary
penalty order that relates to the offence or that might result from conviction
for the offence, to the extent that the forfeiture or order applies to any other
property; and
(d) must not have regard to any literary proceeds order that relates to
the offence.