25Assessment of pecuniary penalty

#### 25 Assessment of pecuniary penalty 25 Assessment of pecuniary penalty > > (1) In this section— > > > > offence period, in relation to an application under section 13 (1) (b) made in reliance on the conviction of a person for 2 or more serious offences, means the period commencing when the earliest of those offences was committed and ending when the latest of those offences was committed. > > > (2) For the purposes of an application for a pecuniary penalty order against a person (in this section called the 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](/view/html/inforce/current/act-1985-226)— > > > > > > > (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. > > > (2A) In considering whether to treat a benefit of the kind referred to in subsection (2) (a1) as a benefit derived by the defendant because of having committed a serious offence or serious offences, a court may have regard to any matter that it thinks fit, including— > > > > > (a) whether or not it is in the public interest to treat it as such a benefit, and > > > > > (b) whether or not the depiction of the offence or offences, or the expression of the defendant’s thoughts, opinions or emotions regarding the offence or offences, has any general social or educational value, and > > > > > (c) the nature and purposes of the public promotion for which the benefit was provided, including its use for research, educational or rehabilitative purposes. > > > (2B) If a court is satisfied that part (but not all) of a public promotion relates to a depiction or an expression of the kind referred to in subsection (2) (a1), the court may, for the purposes of section 24, treat the value of the benefit derived by the defendant because of having committed an offence as being such proportion of the total value of any benefit derived by the defendant for the promotion as seems just and equitable to the court in the circumstances. > > > (3) If, at the hearing of an application for a pecuniary penalty order against a defendant in relation to a serious offence or serious offences, evidence is given that the value of the defendant’s property— > > > > > (a) after the defendant committed the serious offence, or > > > > > (b) during and after the end of the offence period, > > > > exceeded the value of the defendant’s property before the defendant committed the serious offence or before the commencement of the offence period then, for the purposes of section 24, the court shall, subject to subsection (4), treat the value of the benefits derived by the defendant because of having committed the offence or offences as being not less than the amount of the excess. > > > (4) If, after evidence has been given at the hearing of an application for a pecuniary penalty order against a defendant in relation to a serious offence or serious offences that the value of the defendant’s property— > > > > > (a) after the defendant committed the serious offence, exceeded the value before the serious offence was committed, or > > > > > (b) after the end of the offence period, exceeded the value before the commencement of the offence period, > > > > the defendant satisfies the court that the whole or a part of the excess was due to causes unrelated to the commission of the offence or offences— > > > > > (c) if the defendant so satisfies the court in respect of the whole of the excess—subsection (3) does not apply to the excess, or > > > > > (d) if the defendant so satisfies the court in respect of a part of the excess—subsection (3) applies to the excess as if it were reduced by the amount of that part. > > > (5) In calculating, for the purposes of an application for a pecuniary penalty order against a defendant in relation to a serious offence or serious offences, the value of benefits derived by the defendant because of having committed the offence or offences, any expenses or outgoings of the defendant in connection with the commission of the offence or offences shall not be deducted. > > > > Note. > > > > For example, in the case of an illegal activity involving the trafficking of drugs, in determining the value of benefits derived by the defendant from the trafficking of drugs there is to be no reduction on account of any expenditure by the defendant in acquiring the drugs. > > > (6) This section applies to and in relation to property that comes into the possession or under the control of a person either within or outside New South Wales, and to benefits that are provided for a person either within or outside New South Wales. > > > (7) At the hearing of an application for a pecuniary penalty order against a defendant in relation to a serious offence or serious offences— > > > > > (a) a member of the Police Force, or > > > > > (b) a member of the Australian Federal Police, or > > > > > (c) a Customs officer, > > > > who is experienced in the investigation of indictable offences under, or similar to offences under, the [Drug Misuse and Trafficking Act 1985](/view/html/inforce/current/act-1985-226) may testify, to the best of his or her information, knowledge and belief— > > > > > (d) with respect to the amount that was the market value of a prohibited drug or prohibited plant as respectively defined in that Act at a particular time or during a particular period, or > > > > > (e) with respect to the amount, or the range of amounts, ordinarily paid at a particular time, or during a particular period, for the doing of an act or thing in relation to such a prohibited drug or prohibited plant, > > > > despite any rule of law or practice relating to hearsay evidence and the testimony shall, in the absence of evidence to the contrary, be evidence of the matter testified to. > > **s 25:** Am 2002 No 130, Sch 3 \[7\]–\[9\]; 2017 No 40, Sch 1.3 \[3\].