22Assessment of pecuniary penalties

### 22 Assessment of pecuniary penalties > > (1)  In this section – > > > > > [*\[Section 22 Subsection (1) amended by No. 95 of 2001, Sched. 2, Applied:01 Jun 2002\]*](/view/html/inforce/2002-06-01/act-2001-095#JS2@Ja3@GC1@Hpa@EN) ***controlled substance*** means a controlled substance within the meaning of the [Misuse of Drugs Act 2001](/view/html/inforce/2026-04-12/act-2001-094) ; > > > > > [*\[Section 22 Subsection (1) amended by No. 95 of 2001, Sched. 2, Applied:01 Jun 2002\]*](/view/html/inforce/2002-06-01/act-2001-095#JS2@Ja3@GC1@Hpb@EN) ***offence period***, in relation to an application under [section 11](#GS11@EN) [(1)](#GS11@Gs1@EN) [(b)](#GS11@Gs1@Hpb@EN) made in relation to 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. > > > > [*\[Section 22 Subsection (1) amended by No. 95 of 2001, Sched. 2, Applied:01 Jun 2002\]*](/view/html/inforce/2002-06-01/act-2001-095#JS2@Ja3@GC1@Hpc@EN) > > > (2)  For the purposes of an application for a pecuniary penalty order against a person (in this subsection called "the defendant") the value of the commercial or other benefits derived by the defendant from the commission of a serious offence or serious offences is to be assessed by the court having regard to the evidence before it concerning all or any of the following: > > > > > > (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 direction of the defendant – > > > > > > > > by reason of the commission of the offence or any of the offences; > > > > > > > (b) the value of any other benefit provided to – > > > > > > > > > > (i) the defendant; or > > > > > > > > > > > (ii) another person at the request or direction of the defendant – > > > > > > > > by reason of the commission of 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 raw narcotic, narcotic substance, prohibited substance or prohibited plant – > > > > > > > > > > (i) the market value, as at the time of the offence, of similar or substantially similar narcotics, substances or plants; 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 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; > > > > > > > (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. > > > (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 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 offence or before the commencement of the offence period then, for the purposes of [section 21](#GS21@EN) , the court is, subject to [subsection (4)](#GS22@Gs4@EN) , to treat the value of the benefits derived by the defendant from the commission of the offence or offences as being not less than the amount of the excess. > > > (4)  If 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 – > > > > > > (a) after the defendant committed the offence or offences, the value of the defendant's property exceeded the value of the defendant's property before the offence was, or the offences were, committed; or > > > > > > > (b) after the end of the offence period, the value of the defendant's property exceeded the value of the defendant's property before the commencement of the offence period – > > > > > > but the defendant satisfies the court that the whole or part of the excess was due to causes unrelated to the commission of the offence or offences then – > > > > > > > (c) if the defendant so satisfies the court in respect of the whole of the excess – [subsection (3)](#GS22@Gs3@EN) 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)](#GS22@Gs3@EN) applies to the excess as if it were reduced by the amount of that part. > > > (5)  A benefit is not to be taken into account for the purposes of this section if a pecuniary penalty has been imposed in respect of the benefit under – > > > > > > (a) this Act; or > > > > > > > (b) another law of the State; or > > > > > > > (c) a law of another State; or > > > > > > > (d) the *Proceeds of Crime Act 1987* of the Commonwealth; or > > > > > > > (e) Division 3 of Part XIII of the *Customs Act 1901* of the Commonwealth. > > > (6)  In calculating, for the purposes of an application for a pecuniary penalty order, the value of benefits derived by a person from the commission of a serious offence or serious offences, any expenses or outgoings of the person in connection with the commission of the offence or offences are to be disregarded. > > > (7)  At the hearing of an application for a pecuniary penalty order, an inspector within the meaning of the [Poisons Act 1971](/view/html/inforce/2026-04-12/act-1971-081) or a police officer who is experienced in the investigation of narcotics offences may give evidence – > > > > > > (a) [*\[Section 22 Subsection (7) amended by No. 95 of 2001, Sched. 2, Applied:01 Jun 2002\]*](/view/html/inforce/2002-06-01/act-2001-095#JS2@Ja3@GC1@Hpd@EN) with respect to the amount that, to the best of his or her information, knowledge and belief, was the market value of a controlled substance at a particular time or during a particular period; and > > > > > > > (b) [*\[Section 22 Subsection (7) amended by No. 95 of 2001, Sched. 2, Applied:01 Jun 2002\]*](/view/html/inforce/2002-06-01/act-2001-095#JS2@Ja3@GC1@Hpe@EN) with respect to the amount, or the range of amounts, that, to the best of his or her information, knowledge and belief, was the amount, or 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 a controlled substance. > > > (8)  [Subsection (7)](#GS22@Gs7@EN) has effect notwithstanding any rule of law or practice relating to the admission of hearsay evidence.