What is a Pecuniary Penalty Order in New South Wales?

by Sonia Hickey
Penalty

A man has been fined $11,000 for stealing more than 12 tonnes of fish from the drought-stricken Darling River.

Shaun Russsell Cox stole the fish from the Darling River in NSW between Wentworth and Wilcannia and then sold the fish at the Footscray market in Victoria, between 2017 and 2019 profiting more than $200,000.

Under law in New South Wales, the fish that Mr Cox stole, golden perch, cannot be fished commercially. Mr Cox told the court that he committed the offence during a time of severe drought when fish breeds were dying in the Darling River.

Mildura County Court Judge John Smallwood told the court there was ample evidence for Mr Cox to have faced more serious charges in relation to the theft and the damage caused to the river system. Mr Cox was fined $15,000 and had his boat confiscated in 2019 in relation to some of the offences he admitted to NSW Fisheries.

Judge Smallwood however, expressed the view that the only punishment available to him was too lenient. Mr Cox was fined $11,000 (about 5.5% of the profit he made) with the Judge explaining he was only able to hand down punishments for selling fish without a licence and dealing with the proceeds of crime, because those were the only crimes that had occurred in Victoria.

However, the Judge added that he intended to ensure that Mr Cox would be punished more severely.

“I will be making a pecuniary penalty, but I won’t be doing that until I’m satisfied as to the appropriate quantum,” Judge Smallwood remarked.

What is a pecuniary penalty?

A pecuniary penalty in the context of the criminal law is essentially an order requiring payment as a result of the commission of an offence.

It can come in the form of a fine, payment of compensation for monetary loss to another or repayment of benefits otherwise derived from criminal activity.

What is a pecuniary penalty order in proceeds of crime cases?

In the context of proceeds of crime cases, section 24 of the Confiscation of Proceeds of Crime Act 1989 (NSW) (the Act) provides as follows:

(1) If a person has been convicted of a serious offence other than a drug trafficking offence and an application is made under section 13 (1)(b) – in other words, for a pecuniary penalty order against the person in respect of benefits derived by the person from the commission of the offence, the court may:

(a) assess, in accordance with section 25, the value of the benefits derived by the person because of having committed the offence, and

(b) order the person to pay to the State a pecuniary penalty equal to the value so assessed.

(2) If:

(a) property that is the proceeds of the offence has been forfeited under this Act or a law of the Commonwealth, a Territory or another State, or

(b) a forfeiture order is proposed to be made against property that is proceeds of the offence,

the pecuniary penalty to be paid shall be taken to be reduced by an amount equal to the value of the property as at the time of the making of the order under this section.

(3) If:

(a) a court makes an order under this section in relation to an offence, and

(b) in calculating the penalty amount, the court took into account a proposed forfeiture order in respect of property, and

(c) an appeal against the forfeiture order is allowed or the proceedings for the proposed forfeiture order terminate without the proposed forfeiture order being made, an appropriate officer may apply to the court for a variation of the order to increase the penalty amount by the value of the property and the court may, if it considers it appropriate to do so, vary the order accordingly.

(4) An amount payable by a person to the State in accordance with an order made under this section shall, for all purposes, be taken to be a civil debt due by the person to the State.

(5) An order made by a court under this section may be enforced as if it were an order made by the court in civil proceedings instituted by the State against the person to recover a debt due by the person to the State.

What matters are relevant to determining the amount of a pecuniary penalty order?

Section 25(2) of the Act sets out the matters that are relevant to determining the amount of a pecuniary penalty.

The section provided as follows:

For the purposes of an application for a pecuniary penalty order against a defendant, the value of the benefits derived by the defendant because of having committed a serious offence or serious offences shall be assessed by a court having regard to information before the court concerning all or any of the following matters:

(a) the money, or the value of the property other than money, that came into the possession or under the control of:

(i) the defendant, or

(ii) another person at the request or by the direction of the defendant,

because of the defendant’s having committed the offence or any of the offences,

(a1) subject to subsection (2A), the value of any benefit that was provided for the defendant (or for another person at the request or direction of the defendant) for the depiction of the offence or offences, or the expression of the defendant’s thoughts, opinions or emotions regarding the offence or offences, in any public promotion,

(b) the value of any benefit, other than a benefit of the kind referred to in paragraph (a) or (a1), that was provided for:

(i) the defendant, or

(ii) another person at the request or by the direction of the defendant,

because of the defendant’s having committed the offence or any of the offences,

(c) if the offence or any of the offences consisted of the doing of an act or thing in relation to a prohibited drug or prohibited plant as respectively defined in the Drug Misuse and Trafficking Act 1985:

(i) the market value, at the time of the offence, of similar or substantially similar substances, and

(ii) the amount that was, or the range of amounts that were, ordinarily paid for the doing of a similar or substantially similar act or thing,

(d) the value of the defendant’s property:

(i) if the application relates to a single serious offence–before and after the commission of the offence, or

(ii) if the application relates to 2 or more serious offences – before, during and after the offence period,

(e) the defendant’s income and expenditure:

(i) if the application relates to a single offence–before and after the commission of the offence, or

(ii) if the application relates to 2 or more offences–before, during and after the offence period.

Going to court for a proceeds of crime case?

If you have been accused of obtaining the proceeds of a crime, call Sydney Criminal Lawyers 24/7 on (02) 9261 8881 to arrange a free first conference with a lawyer who is vastly experienced in these cases and has an outstanding track record of having cases withdrawn, downgraded or thrown out of court.

Receive all of our articles weekly

Author

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

Your Opinion Matters