49Official Trustee to discharge pecuniary penalty

#### 49 Official Trustee to discharge pecuniary penalty (1) Where: (a) a pecuniary penalty order is made against a person (in this subsection called the defendant) in reliance on the defendant’s conviction of an offence; and (b) at the time when the pecuniary penalty order is made, property is subject to a restraining order made, in reliance on the defendant’s conviction of the offence or a related offence or in reliance on the charging or proposed charging of the defendant with the offence or a related offence, against: (i) property of the defendant; or (ii) property of another person in relation to which an order under subsection 28(3) is made; the court may include in the pecuniary penalty order a direction to the Official Trustee to pay the Commonwealth, in accordance with this section, an amount equal to the penalty amount out of that property. (2) Where: (a) a pecuniary penalty order is made against a person (in this subsection called the defendant) in reliance on the defendant’s conviction of an offence; and (b) a restraining order is subsequently made against: (i) property of the defendant; or (ii) property of another person in relation to which an order under subsection 28(3) is in force; in reliance on the defendant’s conviction of the offence; the court making the restraining order may include in the restraining order a direction to the Official Trustee to pay the Commonwealth, in accordance with this section, an amount equal to the penalty amount out of that property. (2A) If: (a) a pecuniary penalty order has been made against a person (the defendant) in reliance on the defendant’s conviction of an offence; and (b) a restraining order is in force against: (i) property of the defendant; or (ii) property of another person in relation to which an order under subsection 28(3) is in force; the Court may, on application by the DPP, direct the Official Trustee to pay the Commonwealth, in accordance with this section, an amount equal to the penalty amount out of the property. (3) For the purposes of enabling the Official Trustee to comply with a direction given by a court under subsection (1), (2) or (2A), the court may, in the order in which the direction is given or by a subsequent order: (a) direct the Official Trustee to sell or otherwise dispose of such of the property that is subject to the restraining order as the court specifies; and (b) appoint an officer of the court or any other person to execute any deed or instrument in the name of a person who owns or has an estate, interest or right in the property and to do any act or thing necessary to give validity and operation to the deed or instrument. (4) The execution of the deed or instrument by the person appointed by an order under subsection (3) has the same force and validity as if the deed or instrument had been executed by the person who owned or had the estate, interest or right in the property. (5) Where the Official Trustee is given a direction under subsection (1), (2) or (2A) in relation to property, the Official Trustee shall not: (a) if the property is money—apply the money in accordance with subsection (6) until the end of the relevant appeal period; and (b) if the property is not money—sell or otherwise dispose of the property until the end of the relevant appeal period. (6) Where the Official Trustee is given a direction under subsection (1), (2) or (2A) in relation to property, the Official Trustee shall, as soon as practicable after the end of the relevant appeal period: (a) if the property is money: (i) apply the money in payment of the costs, charges, expenses and remuneration, of the kind referred to in subsection 55(1), incurred or payable in connection with the restraining order and payable to the Official Trustee under the regulations; and (ii) subject to subsection (7), credit the amount of the remainder of the money to the Confiscated Assets Special Account as required by section 34B; and (b) if the property is not money: (i) sell or otherwise dispose of the property; (ii) apply the proceeds of the sale or disposition in payment of the costs, charges, expenses and remuneration, of the kind referred to in subsection 55(1), incurred or payable in connection with the restraining order or the sale or disposition and payable to the Official Trustee under the regulations; and (iii) subject to subsection (7), credit the amount of the remainder of those proceeds to the Confiscated Assets Special Account as required by section 34B. (7) Where the money or proceeds to which subparagraph (6)(a)(ii) or (b)(iii) applies exceeds the penalty amount, the Official Trustee shall: (a) credit to the Confiscated Assets Special Account as required by section 34B an amount equal to the penalty amount; and (b) pay the balance to the person whose property was subject to the restraining order. (8) Where the Official Trustee credits, in accordance with a direction under this section, an amount to the Confiscated Assets Special Account as required by section 34B in satisfaction of a person’s liability under a pecuniary penalty order, the person’s liability under the pecuniary penalty order shall, to the extent of the payment, be deemed to be discharged. (9) Where: (a) a restraining order is made against property in reliance on a person’s conviction of an offence or in reliance on the charging, or proposed charging of a person with an offence; and (b) before or after the restraining order is made, a pecuniary penalty order has been or is made against the person in reliance on the person’s conviction of the offence or a related indictable offence; the relevant appeal period in respect of the property is: (c) the appeal period in relation to the person’s conviction of the offence; or (d) the appeal period in relation to the making of the pecuniary penalty order; whichever ends last. (10) A reference in this section to the appeal period in relation to a person’s conviction of an offence is: (a) in a case where the person is to be taken to have been convicted of the offence by reason of paragraph 5(1)(b)—a reference to the appeal period in relation to the finding of the person guilty of the offence; and (b) in a case where the person is to be taken to have been convicted of the offence by reason of paragraph 5(1)(c)—a reference to the appeal period in relation to the person’s conviction of the other offence referred to in that paragraph. (11) In this section, appeal period, in relation to a decision of a court or a finding, means the period ending: (a) if the period provided for the lodging of an appeal against the decision or finding has ended without such an appeal having been lodged—at the end of that period; or (b) if an appeal against the decision or finding has been lodged—when the appeal lapses or is finally determined.