Criminal Asset Confiscation: The Forgotten Cost

When convicted of a serious criminal offence you not only face sentencing of hefty fines and or a term of imprisonment but the loss of your assets. Orders for asset confiscation are becoming more prominent than ever in attempts to restrict the activities of criminal enterprises. Yet it is individual offenders and innocent parties who often endure hardship. With recent reforms to asset confiscation being the spotlight of political debate, understanding your rights and seeking immediate legal assistance when faced with a confiscation proceeding is crucial.

Where a link is shown between criminal offending and your assets a court has the power to freeze or confiscate those assets. This occurs where the assets were used in the assistance of the criminal offending or where the assets were purchased from the proceeds of the offending. A common example is the forfeiture of a home where a person is convicted of growing cannabis in the house. The scope of assets vulnerable to forfeiture is vast including real estate, vehicles, white goods, machinery and cash. Forfeiture can also occur in relation to assets not held in the name of the offender, creating a risk to the assets of your family.

At the commencement of criminal proceedings, police can apply for a restraining order to restrict or freeze assets where there exists sufficient suspicion of a link between the offending and the assets. Any breach of the order leaves you liable to a maximum fine of $20,000 or imprisonment for four years.

Six months following a conviction for a relevant offence, the assets subject to the restraining order will be automatically forfeited unless an application is made by the convicted person to exclude the particular asset from forfeiture.

The loss of your home or vehicle can have drastic financial and practical consequences on you and your partner and family. At TGB we have experienced criminal and property lawyers who can provide valuable assistance through the making of an application to exclude assets. This is achieved by satisfying the court that either the assets were acquired through legally obtained funds and not used in the furtherance of criminal offending, or that the forfeiture would cause disproportionate hardship to innocent parties.

Recent reforms to the legislation have significantly extended the power to confiscate assets of specified offenders. Under the new legislation, the entirety of a prescribed drug offender’s assets are liable to confiscation to the point of bankruptcy regardless of whether evidence exists demonstrating the assets legal purchase. A prescribed drug offender is classified under legislation as being a person who has been found guilty of three indictable drug offences over 10 years or where convicted of trafficking a commercial quantity.

It is crucial to take legal advice in relation to confiscation. If proceedings have been issued over your assets or you need advice, contact your nearest TGB office.