Subdiv 1Forfeiture on conviction of a serious offence

Subdivision 1—Forfeiture on conviction of a serious offence 74—Forfeiting restrained property without forfeiture order if person convicted of serious offence (1) Property is forfeited to the Crown at the end of the relevant period if— (a) a person is convicted of a serious offence; and (i) at the end of the relevant period, the property is covered by a restraining order that relates to the offence; or (ii) the property was covered by a restraining order that relates to the offence, but the property was excluded, or the order revoked, under section 38 or section 44; and (c) the property is not subject to an order under section 76 excluding the property from forfeiture under this Division. (2) For the purposes of this section, it does not matter whether— (a) the restraining order was made before or after the person's conviction of the serious offence; or (b) immediately before forfeiture, the property is the person's property or another person's property. (3) However, this section does not apply if the person is taken to have been convicted under section 5(1)(d). (4) A restraining order in relation to a related offence with which the person has been charged, or is proposed to be charged, is taken, for the purposes of this section, to be a restraining order in relation to the serious offence of which the person was convicted. (5) If— (a) particular property is excluded from a restraining order under section 38, or a restraining order that covered particular property is revoked under section 44; and (b) the security referred to in section 38(a)(iii) or section 44(a)(iii) (as the case requires) in connection with the exclusion or revocation is still in force, the security is taken, for the purposes of this section and section 75, to be the property referred to in subsection (1). (6) In this section— relevant period means— (a) the 6 month period starting on the day of the conviction; or (b) if, at the end of the 6 month period starting on the day of the conviction, an extended period applies in accordance with section 75—that extended period. 75—Extended period (1) An extended period will apply for the purposes of the definition of relevant period in section 74 if the applicant has, not later than 6 months after the start of the day of the relevant conviction, applied to a court under this Act to exclude the property from the restraining order or to exclude the property from forfeiture and that application has not yet been finally determined. (2) The extended period applying is the period ending when the application to exclude property from the restraining order or from forfeiture (as the case may be) is finally determined. 76—Excluding property from forfeiture under this Division (1) The court that made the restraining order referred to in section 74(1)(b) may make an order excluding particular property from forfeiture under this Division if— (a) a person has been convicted of a serious offence to which the restraining order relates; and (ab) a person applies for the exclusion order; and (ac) the applicant owns the property; and (b) the property is covered by the restraining order (or is security given under section 38(a)(iii) for the exclusion of property that was covered by the restraining order or under section 44(a)(iii) for the revocation of the restraining order); and (c) the court is satisfied that— (i) the property is not proceeds of unlawful activity; and (ia) the person convicted of the serious offence to which the restraining order relates— (A) is not, as a result of the conviction, a prescribed drug offender; or (B) is, as a result of the conviction, a prescribed drug offender but the property is protected property of the person; and (ii) the applicant's interest in the property was lawfully acquired; and (iii) it would not be contrary to the public interest for the property to be excluded from such forfeiture. (2) To avoid doubt, an order under this section cannot be made in relation to property if the property has already been forfeited under this Division. (3) The applicant must give written notice to the DPP of both the application and the grounds on which the order is sought. 76AA—Excluding property based on cooperation with law enforcement agency (1) The court that made the restraining order referred to in section 74(1)(b) may make an order excluding particular property from forfeiture under this Division if— (a) a person applies for the order; and (b) the applicant has become a prescribed drug offender as a result of being convicted of the serious offence to which the restraining order relates; and (c) the applicant owns the property; and (d) the court is satisfied that the property is neither proceeds nor an instrument of unlawful activity; and (e) the court is satisfied that it would be appropriate to reduce the effect of forfeiture because— (i) the person has cooperated with a law enforcement agency by providing a witness statement and an undertaking to provide oral testimony; and (ii) that cooperation was not taken into account by the court in sentencing the person; and (iii) the cooperation relates directly to a serious and organised crime offence that has been committed or may be committed in the future. (1a) In determining whether to exclude property under this section, the court must have regard to such of the following as may be relevant: (a) the nature and extent of the applicant's cooperation; (b) the timeliness of the cooperation; (c) the truthfulness, completeness and reliability of any information or evidence provided by the applicant; (d) the evaluation (if any) by the authorities of the significance and usefulness of the applicant's cooperation; (e) any benefit that the applicant has gained or is likely to gain by reason of the cooperation; (f) the degree to which the safety of the applicant (or some other person) has been put at risk of violent retribution as a result of the applicant's cooperation; (g) the likelihood that the applicant will commit further offences, and may have regard to any other factor or principle the court thinks relevant. (2) To avoid doubt, an order under this section cannot be made in relation to property if the property has already been forfeited under this Division. (2a) If the court is of the view that an exclusion order made in respect of particular property in accordance with this section would alert other persons to the applicant's cooperation and as a result put the applicant at risk of violent retribution, it may make an exclusion order— (a) specifying the nature, extent and value (at the time of making the order) of the property concerned; and (b) direct the Crown to pay the applicant an amount equal to the value specified in paragraph (a). (3) The applicant must give written notice to the DPP of both the application and the grounds on which the order is sought. (5) This section is in addition to, and does not derogate from, section 76. 76A—No exclusion where forfeiture taken into account in sentencing Despite section 76 but subject to section 76AA, if a court has, in determining sentence in respect of a person's conviction of a serious offence, taken into account any forfeiture of property under this Act that relates to the offence or that might result from conviction for the offence, the convicted person cannot apply for an order under this Subdivision excluding the property from forfeiture under this Division. 77—Court may declare that property has been forfeited under this Division The court that made the restraining order referred to in section 74(1)(b) may declare that particular property has been forfeited under this Division if— (a) the DPP applies to the court for the declaration; and (b) the court is satisfied that the property is forfeited under this Division. Subdivision 2—Recovery of forfeited property 78—Court may make orders relating to transfer of forfeited property etc If property is forfeited to the Crown under section 74, the court that made the restraining order referred to in section 74(1)(b) may, if— (a) a person who claims an interest in the property applies under section 80 for an order under this section; and (i) the person was not involved in the commission of the serious offence to which the forfeiture relates; and (ii) the person's interest in the property— (A) is not subject to the effective control of the person whose conviction caused the forfeiture; and (B) is not proceeds of the serious offence or an instrument of the offence; and (c) the court is satisfied that— (i) the property was not used in, or in connection with, an unlawful activity and was not derived or realised, directly or indirectly, by any person from an unlawful activity; and (ii) the applicant acquired the property lawfully; and (iii) the applicant is not the person convicted of the serious offence to which the forfeiture relates, (d) declare the nature, extent and value of the applicant's interest in the property; and (e) — (i) if the interest is still vested in the Crown—direct the Crown to transfer the interest to the applicant; or (ii) declare that there is payable by the Crown to the applicant an amount equal to the value declared under paragraph (d). 79—Court may make orders relating to buying back forfeited property If property is forfeited to the Crown under section 74, the court that made the restraining order referred to in section 74(1)(b) may, if— (a) a person who claims an interest in the property applies under section 80 for an order under this section; and (i) it would not be contrary to the public interest for the person's interest to be transferred to the person; and (ii) there is no other reason why the person's interest should not be transferred to the person, (c) declare the nature, extent and value (as at the time when the order is made) of the interest; and (d) declare that the forfeiture ceases to operate in relation to the person's interest if payment is made under section 72. 80—Applying for orders under sections 78 and 79 (1) An application for an order under section 78 or 79 must be made before the end of the period of 6 months commencing on the day on which the property to which the application relates is forfeited to the Crown. (2) However, the court may give a person permission to apply after the end of that period if the court is satisfied that the delay in making the application is not due to neglect on the part of the person. (3) A person who was given notice of— (a) proceedings for the application for the restraining order by virtue of which the property is forfeited; or (b) the making of the restraining order, must not apply for an order under section 78 or 79 relating to the property. (4) However, the court may give a person permission to apply if the court is satisfied that the person's failure to seek to have the property excluded from the forfeiture by an order under section 76 was not due to any neglect on the part of the person. 81—A person may buy back interest in forfeited property (a) property is forfeited to the Crown under section 74; and (b) a court makes an order under section 79 in respect of an interest in the property; and (c) the amount specified in the order as the value of the interest is, while the interest is still vested in the Crown, paid to the Crown, the Administrator must cause the interest to be transferred to the person in whom it was vested immediately before the property was forfeited to the Crown. (2) The Administrator may do or authorise the doing of anything necessary or convenient to effect a transfer, including— (b) applying for registration of an interest in the property on an appropriate register. 82—A person may buy out another person's interest in forfeited property The Administrator must cause an interest in property to be transferred to a person if— (a) the property is forfeited to the Crown under section 74; and (b) the interest is required to be transferred to the person under this Division; and (c) the person's interest in the property, immediately before the forfeiture, was not the only interest in the property; and (d) the person gives written notice to each other person who had an interest in the property immediately before the forfeiture that— (i) the person intends to purchase the other interest from the Crown; and (ii) the other person may, within 21 days after receiving the notice, lodge a written objection to the purchase of the interest with the Administrator; and (e) no person served with notice under paragraph (d) in relation to the interest lodges a written objection under that paragraph; and (f) the purchaser pays to the Crown, while the interest is still vested in the Crown, an amount equal to the value of the interest. 83—The effect on forfeiture of convictions being quashed (1) If, after forfeiture of property under section 74 in relation to a person's conviction of a serious offence— (a) the person's conviction is subsequently quashed; and (b) the forfeiture does not also relate to the person's conviction of other offences that have not been quashed; and (c) the DPP does not, within 14 days after the conviction is quashed, apply to the court that made the restraining order referred to in section 74(1)(b) for the forfeiture to be confirmed, the Administrator must, as soon as practicable after 14 days after the conviction is quashed have elapsed— (d) if the property is vested in the Crown—cause an interest in the property equivalent to the interest held by the person immediately before the order was made to be transferred to the person; or (e) if the property is no longer vested in the Crown—cause an amount equal to the value of the interest held by the person immediately before the order was made in the property to be paid to the person. (2) If— (a) the DPP makes an application of the kind referred to in subsection (1)(c); and (b) the court decides not to confirm the forfeiture, the Administrator must, as soon as practicable after the application is determined— (c) if the property is vested in the Crown—cause an interest in the property equivalent to the interest held by the person immediately before the order was made to be transferred to the person; or (d) if the property is no longer vested in the Crown—cause an amount equal to the value of the interest held by the person immediately before the order was made in the property to be paid to the person. (3) The Administrator may do or authorise the doing of anything necessary or convenient to effect a transfer, including— (b) applying for registration of an interest in the property on any appropriate register. 84—Notice of application for confirmation of forfeiture (1) The DPP must give written notice of an application for confirmation of the forfeiture to— (a) the person whose conviction was quashed; and (b) any person— (i) who claims, or prior to the forfeiture claimed, an interest in the forfeited property; and (ii) whom the DPP reasonably believes may have had an interest in the forfeited property before the forfeiture. (2) A court may, at any time before finally determining the application— 85—Procedure on application for confirmation of forfeiture (1) A person who claims an interest in property covered by the forfeiture may appear and adduce evidence at the hearing of the application for confirmation of the forfeiture. (2) A court may, in determining the application, have regard to— (ii) if the person was taken to be convicted of that offence because of section 5(1)(c)—the other offence referred to in that paragraph, 86—Court may confirm forfeiture The court may confirm the forfeiture if satisfied that it could make a forfeiture order under section 47 in relation to the serious offence in relation to which the person's conviction was quashed if the DPP were to apply for an order under that section. 87—Effect of court's decision on confirmation of forfeiture If a court confirms the forfeiture under section 86, the forfeiture is taken not to be affected by the quashing of the person's conviction of the serious offence. 88—Administrator must not deal with forfeited property before the court decides on confirmation of forfeiture The Administrator must not, during the period starting on the day after the person's conviction of the serious offence was quashed and ending when the court confirms, or decides not to confirm, the forfeiture, do any of the things required under section 93 in relation to the forfeited property, or amounts received from the disposal of the property. 89—Giving notice if forfeiture ceases to have effect on quashing of a conviction (1) If property was forfeited under section 74 but section 83(1) or (2) applies to the forfeiture, then the DPP— (a) must, as soon as practicable after the forfeiture ceases to have effect, give written notice of the cessation to any person the DPP reasonably believes may have had an interest in that property immediately before the forfeiture; and (b) must, if required by a court, give or publish notice of the cessation to a specified person or class of persons. (2) The court may specify the time and manner in which a notice under subsection (1)(b) is to be given or published. Division 3—Forfeited property 90—What property is forfeited and when (1) Subject to this section— (a) property specified in a forfeiture order vests absolutely in the Crown at the time the order is made; and (b) property forfeited under section 74 vests absolutely in the Crown at the time of the forfeiture. (2) If property specified in the forfeiture order, or forfeited under section 74, is registrable property— (a) the property vests in equity in the Crown, but does not vest in the Crown at law until the applicable registration requirements have been complied with; and (b) the DPP has power to do anything necessary or convenient to give notice of, or otherwise protect, the Crown's equitable interest in the property; and (c) the Crown is entitled to be registered as the owner of the property; and (d) the Administrator has power to do, or authorise the doing of, anything necessary or convenient to obtain the registration of the Crown as the owner. (3) If a person— (a) was, immediately before his or her death, the joint owner of property specified in the forfeiture order; and (b) died before the order was made, but— (i) after the DPP applied for the order; or (ii) while a restraining order covering the property was in force, that property is taken to have vested in the Crown immediately before the person's death (and any such restraining order is also taken to have continued to apply to the property as if the person had not died). (4) If— (a) a person who is convicted of a serious offence was, immediately before his or her death, the joint owner of property; and (b) the period that would apply under section 74 if the property were subject to forfeiture under that section in relation to the conviction had not ended before the person's death; and (c) the period had ended immediately before the person's death the property would have been forfeited under section 74, the property is taken to have vested in the Crown immediately before the person's death. (5) An action by the DPP under subsection (2)(b) is not a dealing for the purposes of section 91(1) or section 92(1). (6) The Administrator's powers under subsection (2)(d) include executing any instrument required to be executed by a person transferring an interest in property of that kind. 91—When the Crown can begin dealing with property specified in a forfeiture order (1) The Crown may only dispose of, or otherwise deal with, property specified in a forfeiture order after, and only if the order is still in force— (i) if an appeal has not been lodged within the period provided for lodging an appeal against the order—the end of the period; or (ii) if an appeal against the order has been lodged within the period provided for lodging an appeal against the order—the appeal lapses or is finally determined; or (b) if the order was made in relation to a person's conviction of a serious offence— (i) if an appeal has not been lodged within the period provided for lodging an appeal against the conviction—the end of the period; or (ii) if an appeal against the conviction has been lodged—the appeal lapses or is finally determined, whichever is the later. (2) However, the Crown may dispose of, or otherwise deal with, property specified in a forfeiture order at an earlier time with the permission of, and in accordance with any directions of, the court. (3) For the purposes of subsection (1)(b)— (a) if the person is to be taken to have been convicted of the offence because of section 5(1)(b)—an appeal against the finding of the person guilty of the offence is taken to be an appeal against the conviction; and (b) if the person is to be taken to have been convicted of the offence because of section 5(1)(c)—an appeal against the person's conviction of the other offence referred to in that paragraph is taken to be an appeal against the conviction. 92—When the Crown can begin dealing with property forfeited under section 74 (1) The Crown may only dispose of, or otherwise deal with, property forfeited under section 74 in relation to a person's conviction of a serious offence if— (a) the period applying under section 74(6) has come to an end; and (b) the conviction has not been quashed by that time. (2) For the purposes of subsection (1), the Crown may dispose of or otherwise deal with the property— (a) if the conviction is one in relation to which neither section 5(1)(b) nor (c) applies— (i) if an appeal has not been lodged within the period provided for lodging an appeal against the conviction—after the end of the period; or (ii) if an appeal against the conviction has been lodged within the period provided for lodging an appeal against the conviction—after the appeal lapses or is finally determined; or (b) if the person is taken to have been convicted because of section 5(1)(b)— (i) if an appeal has not been lodged within the period provided for lodging an appeal against the finding of the person guilty of the serious offence—after the end of the period; or (ii) if an appeal has been lodged within the period provided for lodging an appeal against the finding of the person guilty of the serious offence—after the appeal lapses or is finally determined; or (c) if the person is taken to have been convicted because of section 5(1)(c)— (i) if an appeal has not been lodged within the period provided for lodging an appeal against the person's conviction of the other offence referred to in that paragraph—after the end of the period; or (ii) if an appeal has been lodged within the period provided for lodging an appeal against the person's conviction of the other offence referred to in that paragraph—after the appeal lapses or is finally determined. (3) However, the Crown may dispose of, or otherwise deal with, the property earlier with the permission of, and in accordance with any directions of, the court. 93—How forfeited property must be dealt with (1) The Administrator must— (a) in the case of a forfeiture order—if the order is still in force at the later time referred to in section 91(1); or (b) in the case of a forfeiture under section 74—after the relevant period referred to in that section, as soon as practicable dispose of property (other than money) specified in the order or forfeited under section 74. (1a) To avoid doubt, property may be disposed of under this section by selling the property, arranging for the destruction of the property or in any other manner the Administrator thinks appropriate in the circumstances. (2) Any amounts received from the disposal of property in accordance with this section must, along with any monetary amounts specified in the forfeiture order or forfeited under section 74, then be dealt with in accordance with section 209. 94—Dealings with forfeited property A person is guilty of an offence if— (a) the person knows that a forfeiture order has been made in respect of registrable property; and (b) the person disposes of, or otherwise deals with, the property before the Crown's interest has been registered on the appropriate register (whether or not the person knows the Crown's interest has not yet been registered); and (c) the forfeiture order has not been discharged. Part 5—Other confiscation orders Division 1—Pecuniary penalty orders Subdivision 1—Pecuniary penalty orders 95—Making pecuniary penalty orders (1) A court must, on application by the DPP, make an order (a pecuniary penalty order) requiring a specified person to pay to the Crown an amount determined under Subdivision 2 if satisfied that— (a) the person has been convicted of, or has committed, a serious offence; and (b) the person derived benefits from the commission of the offence. (2) A court may, on application by the DPP, make an order (a pecuniary penalty order) requiring a specified person to pay to the Crown an amount determined under Subdivision 2 if satisfied that— (a) the person has been convicted of, or has committed, a serious offence; and (b) the person's property includes an instrument of the offence. (3) In considering whether it is appropriate to make a pecuniary penalty order under subsection (2), the court may have regard to— (a) any hardship that may reasonably be expected to be caused to any person (other than the person against whom the order is sought) by the operation of the order; and (b) the use that is ordinarily made, or was intended to be made, of the property; and (c) the gravity of the offence or offences concerned; and (d) any other matter the court thinks fit. (4) A court is not prevented from making a pecuniary penalty order in relation to a serious offence merely because of the existence of another confiscation order in relation to the offence. (5) An application for a pecuniary penalty order must be made— (a) before the end of the period of 9 months commencing on the conviction day; or (b) if, at the end of the period of 9 months commencing on the conviction day, an extended period applies in accordance with section 75—before the end of the period of 3 months commencing on the day the extended period ends. (6) An application for a pecuniary penalty order may be made in relation to one or more serious offences. (7) An application may be made for a pecuniary penalty order in relation to benefits derived from the commission of a serious offence even if— (a) a forfeiture order in relation to the offence, or an application for such a forfeiture order, has been made; or (b) Part 4 Division 2 applies to the offence. (8) A person who would be subject to a pecuniary penalty order if it were made may appear and adduce evidence at the hearing of the application. 96—Additional application for pecuniary penalty order (1) The DPP cannot, unless the court gives permission, apply for a pecuniary penalty order against a person in respect of benefits derived from the commission of a serious offence or a pecuniary penalty order against a person in respect of an instrument of the offence if— (a) an application has previously been made for a pecuniary penalty order in respect of the benefits or instrument (as the case may be); and (b) the application has been finally determined on the merits. (2) The court must not give permission unless it is satisfied that— (a) the benefit or instrument to which the new application relates was identified only after the first application was determined; or (b) necessary evidence became available only after the first application was determined; or (c) it is in the interests of justice to grant the permission. (3) Except as provided in this section, nothing prevents the DPP from making more than 1 application for a pecuniary penalty order against a person in relation to a serious offence. 97—Pecuniary penalty orders made in relation to serious offence convictions (1) A court must not make a pecuniary penalty order in relation to a person's conviction of a serious offence until after the end of the period of 6 months commencing on the conviction day. (2) However, the court may make a pecuniary penalty order in relation to the person's conviction when it passes sentence on the person. (3) Subsection (1) does not apply if the person is taken to have been convicted of the serious offence because of section 5(1)(d). 98—Making of pecuniary penalty order if person has absconded A court must not, if a person is taken under section 5(1)(d) to have been convicted of a serious offence, make a pecuniary penalty order relating to the person's conviction unless— (a) the court is satisfied, on the balance of probabilities, that the person has absconded; and (i) the person has been committed for trial for the offence; or (ii) the court is satisfied, having regard to all the evidence before the court, that a reasonable jury, properly instructed, or the Magistrates Court (as the case requires) could lawfully find the person guilty of the offence. 98A—Property subject to a person's effective control For the purposes of this Division, the court may treat as property of a person any property that is, in the court's opinion, subject to the person's effective control. Subdivision 2—Pecuniary penalty order amounts 99—Determining penalty amounts The amount that a person is ordered to pay under a pecuniary penalty order (the penalty amount) is determined by— (a) in the case of an application under section 95(1)— (i) assessing under this Subdivision the total value of the benefits the person derived from— (A) the commission of the serious offence; and (B) the commission of any other offence that constitutes unlawful activity; and (ii) subtracting from the total value the sum of the reductions (if any) in the penalty amount under sections 107 and 108; or (b) in the case of an application under section 95(2)—assessing the value of the instrument (as at the time of assessment) and subtracting from the value the sum of the reductions (if any) in the penalty amount under sections 107 and 108. 100—Evidence the court is to consider in assessing the value of benefits In assessing the value of benefits that a person has derived from the commission of a serious offence or serious offences, the court must have regard to the evidence before it concerning— (a) the money, or the value of property other than money, that, in connection with the commission of the offence or offences, came into the possession or under the control of— (i) the person; or (ii) another person at the person's request or direction; and (b) the value of any other benefit that, in connection with the commission of the offence or offences, was provided to— (i) the person; or (ii) another person at the person's request or direction or in accordance with an arrangement entered into by the person; and (c) if any of the illegal activity consisted of doing an act or thing in relation to a drug— (i) the market value, at the time of the offence, of similar or substantially similar drugs; 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; and (d) the value of the person's property before, during and after the commission of the offence or offences; and (e) the person's income and expenditure before, during and after the commission of the offence or offences; and (f) any other matter the court considers relevant. 101—Value of benefits derived (a) an application is made for a pecuniary penalty order against a person in relation to a serious offence or serious offences; and (b) at the hearing of the application, evidence is given that the value of the person's property during or after the commission of the offence or offences, or any other unlawful activity that the person has engaged in, exceeded the value of the person's property before the commission of the offence or offences, the court is to treat the value of the benefits derived by the person from the commission of the offence or offences as being not less than the amount of the greatest excess. (2) The amount treated as the value of the benefits under this section is reduced to the extent (if any) that the court is satisfied that the excess was due to causes unrelated to the commission of the serious offence or serious offences or any other unlawful activity that the person has engaged in. (3) If, at the hearing of the application, evidence is given of the person's expenditure during or after the commission of the serious offence or serious offences, or any other unlawful activity that the person has engaged in, the amount of the expenditure is presumed, unless the contrary is proved, to be the value of a benefit that was provided to the person in connection with the commission of the serious offence or serious offences. (4) Subsection (3) does not apply to expenditure to the extent that it resulted in the acquisition of property that is taken into account under subsection (1). 102—Value of benefits may be as at time of assessment (1) In quantifying the value of a benefit for the purposes of this Subdivision, a court may treat as the value of the benefit the value that the benefit would have had if derived at the time the court makes its assessment of the value of benefits. (2) Without limiting subsection (1), the court may have regard to any decline in the purchasing power of money between the time when the benefit was derived and the time the court makes its assessment. 103—Matters that do not reduce the value of benefits In assessing the value of benefits that a person has derived from the commission of a serious offence or serious offences, the following must not be subtracted: (a) any expenses or outgoings the person incurred in relation to the offence or offences; (b) the value of any part of the benefits derived from the commission of the offence or offences that the person derives as agent for, or otherwise on behalf of, another person (whether or not the other person receives any of the benefits). 104—Benefits and instruments already the subject of pecuniary penalty (1) A benefit or instrument is not to be taken into account for the purposes of this Subdivision if a pecuniary penalty has been imposed in respect of the benefit or instrument under this Act or any other law. (2) For the purposes of this section, a pecuniary penalty imposed in respect of a benefit includes a literary proceeds amount ordered in respect of the benefit. 106—Effect of property vesting in an insolvency trustee For the purposes of this Subdivision, a person's property is taken to continue to be the person's property if it vests in any of the following: (a) in relation to a bankruptcy—the trustee of the estate of the bankrupt; (b) in relation to a composition or scheme of arrangement under Division 6 of Part IV of the Bankruptcy Act 1966 of the Commonwealth—the trustee of the composition or scheme of arrangement; (c) in relation to a deed of assignment, a deed of arrangement or a composition under Part X of the Bankruptcy Act 1966 of the Commonwealth—the trustee of the deed or the composition; (d) in relation to the estate of a deceased person in respect of which an order has been made under Part XI of the Bankruptcy Act 1966 of the Commonwealth—the trustee of the estate. 107—Reducing penalty amounts to take account of forfeiture and proposed forfeiture (1) If a pecuniary penalty order relates to benefits derived from the commission of a serious offence, the penalty amount under the order is reduced by an amount equal to the value, at the time of the making of the order, of any property that is proceeds of the serious offence if— (a) the property has been forfeited, under this Act or any other law, in relation to the offence to which the order relates; or (b) an application has been made for a forfeiture order that would cover the property. (2) If a pecuniary penalty order relates to instruments of a serious offence, the penalty amount under the order is reduced by an amount equal to the value, at the time of making the order, of any instruments of the offence if— (a) the instruments have been forfeited, under this Act or any other law, in relation to the offence to which the order relates; or (b) an application has been made for a forfeiture order that would cover the instruments. 108—Reducing penalty amounts to take account of fines etc (1) The court may, if it considers it appropriate, reduce the penalty amount under a pecuniary penalty order made in relation to a serious offence by an amount equal to a monetary sum paid, or payable, by the person in relation to the offence (or equal to any proportion of such a monetary sum). (2) In this section— monetary sum means a monetary amount paid by way of fine, restitution, compensation or damages. 109—Varying pecuniary penalty orders to increase penalty amounts (1) A court may, on the application of the DPP, vary a pecuniary penalty order against a person— (i) if the penalty amount was reduced under section 107 to take account of a forfeiture of property or a proposed forfeiture order against property; and (ii) an appeal against the forfeiture or forfeiture order is allowed, or the proceedings for the proposed forfeiture order terminate without the proposed forfeiture order being made, by increasing the penalty amount by an amount equal to the value of the property; and (b) — (i) if the penalty amount was reduced under section 107 to take account of an amount of tax paid by the person; and (ii) an amount is repaid or refunded to the person in respect of that tax, by increasing the penalty amount by an amount equal to the amount repaid or refunded. (2) The DPP's application may deal with more than one increase to the same penalty amount. Division 2—Literary proceeds orders Subdivision 1—Literary proceeds orders 110—Meaning of literary proceeds (1) Literary proceeds are any benefit that a person derives from the commercial exploitation of— (a) the person's notoriety resulting from the person committing a serious offence; or (b) the notoriety of another person involved in the commission of the serious offence resulting from the first-mentioned person committing the offence. (2) The commercial exploitation may be by any means, including— (a) publishing material in written or electronic form; or (b) any use of media from which visual images, words or sounds can be produced; or (c) any live entertainment, representation or interview. (3) A court may, in determining— (a) whether a person has derived literary proceeds; or (b) the value of literary proceeds that a person has derived, treat as property of the person any property that, in the court's opinion— (c) is subject to the person's effective control; or (d) was not received by the person, but was transferred to, or (in the case of money) paid to, another person at the person's direction. 111—Making literary proceeds orders (1) A court may, on application by the DPP, make an order (a literary proceeds order) requiring a person to pay an amount to the Crown if the court is satisfied that the person— (a) has committed a serious offence (whether or not the person has been convicted of the offence); and (b) has derived literary proceeds in relation to the offence. (2) For the purposes of this section, the literary proceeds must have been derived after the commencement of this Act. (3) More than one literary proceeds order may be made against a person in relation to the same serious offence. (4) The court's power to make a literary proceeds order in relation to a serious offence is not affected by the existence of another confiscation order in relation to the offence. (5) A person who would be subject to a literary proceeds order if it were made may appear and adduce evidence at the hearing of the application. 112—Matters taken into account in deciding whether to make literary proceeds orders In determining whether to make a literary proceeds order, the court may take into account any matter it thinks fit, and must take into account— (a) the nature and purpose of the product or activity from which the literary proceeds were derived; and (b) whether supplying the product or carrying out the activity was in the public interest; and (c) the social, cultural or educational value of the product or activity; and (d) the seriousness of the offence to which the product or activity relates; and (e) how long ago the offence was committed. Subdivision 2—Literary proceeds amounts 113—Determining literary proceeds amounts (1) The amount that a person is ordered to pay under a literary proceeds order (the literary proceeds amount) is the amount that the court thinks appropriate. (2) However, the amount must not exceed the amount of the literary proceeds relating to the serious offence to which the order relates, less any deductions or reductions arising under section 114 or section 121. (3) In determining the amount, the court is to have regard to any matters it thinks fit, including— (a) the amount of the literary proceeds relating to the serious offence; and (b) if the person stood trial for the serious offence—the evidence adduced in the proceedings for the offence; and (c) if the person was convicted of the serious offence—the transcript of the sentencing proceedings. 114—Deductions from literary proceeds amounts In determining the amount to be paid under a literary proceeds order against a person, the court must deduct, to the extent that the property is literary proceeds— (a) any expenses and outgoings that the person incurred in deriving the literary proceeds; and (b) the value of any property of the person forfeited under— (i) this Act; or (ii) a recognised Australian forfeiture order; or (iii) a foreign forfeiture order, relating to the serious offence to which the literary proceeds order relates; and (c) any amount payable by the person under— (i) a pecuniary penalty order; or (ii) a recognised Australian pecuniary penalty order; or (iii) a foreign pecuniary penalty order, relating to the serious offence to which the literary proceeds order relates; and (d) the amount of any previous literary proceeds order made against the person in relation to the same exploitation of the person's notoriety resulting from the person committing the serious offence in question. 115—Varying literary proceeds orders to increase literary proceeds amounts (1) A court may, on the application of the DPP, vary a literary proceeds order against a person— (i) if the value of property of the person forfeited under a forfeiture order, a recognised Australian forfeiture order or a foreign forfeiture order was deducted from the literary proceeds amount under section 114(b); and (ii) an appeal against the forfeiture, or against the order, is allowed, by increasing the amount to be paid under the literary proceeds order by an amount equal to the value of the property; and (b) — (i) if an amount payable under a pecuniary penalty order, a recognised Australian pecuniary penalty order or a foreign pecuniary penalty order was deducted under section 114(c) from the amount to be paid under the literary proceeds order; and (ii) an appeal against the amount payable, or against the order, is allowed, by increasing the amount to be paid under the literary proceeds order by an amount equal to the amount that was payable; and (c) — (i) if, in determining the amount to be paid under the literary proceeds order, the court took into account, under section 121, an amount of tax paid by the person who is the subject of the order; and (ii) an amount is repaid or refunded to the person in respect of that tax, by increasing the amount to be paid under the literary proceeds order by an amount equal to the amount repaid or refunded. (2) The DPP's application may deal with more than one increase to the amount to be paid under the literary proceeds order.