Crimes Mental Impairment consultation paper.pdf - Victorian Law ...

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7.110 An example of an automatic order of this type is for an offence of drink driving. If police
issue an infringement notice for an offence of drink driving above a certain blood
alcohol concentration level, the person’s licence is automatically cancelled and the
person is disqualified from obtaining a new licence for a specified period of between six
months and four years. 74 An example of court ordered suspension and disqualification
is the power of a court to suspend a person’s licence for any offence under the Road
Safety Act. 75
Confiscation and forfeiture
7.111 Another consequence that can follow findings of guilt in the criminal process is orders for
confiscation or forfeiture of property used in the commission of offences or owned by the
offender.
7.112 Confiscation and forfeiture laws have their roots in long-established concepts in relation
to removing the right to hold, inherit or dispose of property (referred to as ‘attainder’)
and the confiscation of instruments of crime or damage (referred to as ‘deodand’). 76 The
difference between confiscation and forfeiture has been described as follows:
‘forfeiture’ describes the procedure used to take away specific property belonging to an
offender or someone else that is ‘tainted’ because it was either used in connection with,
or was derived from, the commission of an offence. The term ‘confiscation’ is slightly
broader and describes the procedure for taking away any financial benefits gained
through criminal activity, through the making of a ‘pecuniary penalty order’. 77
7.113 In Victoria, the Confiscation Act 1997 (Vic) governs the laws for forfeiture and confiscation
of property following charges or convictions for Victorian offences. The scheme is
primarily conviction based, but depending on the type of offence, the mechanism for
confiscation or forfeiture varies.
7.114 The Confiscation Act provides for confiscation through discretionary court ordered
forfeiture, automatic forfeiture, discretionary civil forfeiture and discretionary pecuniary
penalty orders. By way of summary, the Confiscation Act provides for the following
orders:
• court-ordered forfeiture—a discretionary court order for forfeiture of tainted property
upon conviction of any indictable offence or a specified summary offence 78
• automatic forfeiture—an automatic order for forfeiture of property that has been
‘restrained’ 79 upon conviction of an ‘automatic forfeiture offence’ (primarily serious
drug offences involving commercial quantities and serious fraud offences) 80
• civil forfeiture—a discretionary court order for forfeiture of tainted property that has
been restrained under the automatic forfeiture provisions upon the court finding that
the accused committed a certain offence on the balance of probabilities (no finding of
guilt or conviction required) 81
• pecuniary penalty orders—a discretionary court order for a person to pay a sum of
money to the Crown equivalent to the proceeds of crime upon conviction or a finding
on the balance of probabilities that the person committed an automatic forfeiture
offence (no finding of guilt or conviction required). 82
74 Road Safety Act 1986 (Vic) s 89C.
75 Ibid s 28.
76 Arie Freiberg and Richard Fox, ‘Fighting Crime with Forfeiture: Lessons From History’ (2000) 6 Australian Journal of Legal History 1.
77 Nina Hudson, ‘Sentencing, Parole Cancellation and Confiscation Orders’ (Report, Sentencing Advisory Council, November 2009) 35 (citations
omitted).
78 Confiscation Act 1997 (Vic) pt 3 div 1. Specified offences are listed in Schedule 1 and include a Schedule 2 offence.
79 This means that a restraining order has been made on the property which prohibits an accused person from disposing of or dealing with
the property or any interest in property.
80 Confiscation Act 1997 (Vic) pt 3 div 2.
81 Ibid pt 4.
82 Ibid pt 8.
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