59Determination of application for pecuniary penalty order

59 Determination of application for pecuniary penalty order

S. 59(1) amended by No. 87/2004 s. 19(d).

(1) On an application under section 58(1) or (2), the court may—

S. 59(1)(a) amended by No. 68/2009 s. 97(Sch. item 23.43).

(a) assess the value of the benefits derived by the accused in relation to the offence; and

S. 59(1)(b) amended by No. 68/2009 s. 97(Sch. item 23.43).

(b) order the accused to pay to the State a pecuniary penalty equal to the value as so assessed less, if the court thinks it desirable to take it into account, any amount paid or payable by way of restitution or compensation in relation to the same conviction—

and must do so on an application under section 58(1) if section 68 applies in relation to the Schedule 2 offence.

S. 59(2) amended by No. 68/2009 s. 97(Sch. item 23.43).

(2) The accused is entitled to appear and to give evidence at the hearing of an application under section 58(1) or (2) but the absence of the accused does not prevent the court from making a pecuniary penalty order.

S. 59(3) amended by No. 68/2009 s. 97(Sch. item 23.43).

(3) If an application is made under section 58(2) to the court before which the accused was convicted of the offence before that court has passed sentence for the offence, that court may make a pecuniary penalty order at the time of passing sentence and for this purpose the court may, if it thinks it necessary to do so, defer the passing of sentence until it has determined the application for the order.

S. 59(4) amended by No. 69/2009 s. 54(Sch. Pt 1 item 9.2).

(4) On an application under section 58(1) or (2) a court may, subject to Part 3.10 of the Evidence Act 2008 and any rules of court, take into account in determining the application any material that it thinks fit including—

(a) subject to section 99(2), a statement or disclosure made during an examination ordered under Part 12; and

(b) evidence given in any proceeding relating to the offence in reliance on the conviction of which the application is made—

and, for this purpose, the whole or any part of the transcript of those proceedings is admissible in evidence as if it were a record of evidence given on the hearing of the application.

S. 59(5) amended by No. 54/2000 s. 25(2).

(5) A court must give priority to an application made under section 84 (restitution order) or Division 2 of Part 4 (compensation order) of the Sentencing Act 1991 in relation to the same conviction and, accordingly, may defer the determination of an application under section 58(1) or (2) until the application under the has been determined.