109Commercial benefits order

109 Commercial benefits order

S. 109(1) amended by Nos 41/2019 s. 77, 34/2023 s. 127(Sch. 1 item 18.35).

(1) A court that finds a person guilty of an offence against this Act or a bus law may, on the application of the prosecutor or Safe Transport Victoria, make an order under this section.

(2) The court may make a commercial benefits order requiring the person to pay, as a fine, an amount not exceeding 3 times the amount estimated by the court to be the gross commercial benefit that—

(a) was received or receivable, by the person or by an associate of the person, from commission of the offence; and

(b) in the case of a journey that was interrupted or not commenced because of action taken by a transport safety officer in connection with commission of the offence, would have been received or receivable, by the person or by an associate of the person—from commission of the offence had the journey been completed.

(3) In estimating the gross commercial benefit that was or would have been received or receivable from commission of the offence, the court may take into account—

(a) benefits of any kind, whether monetary or otherwise; and

(b) monetary savings or a reduction in any operating or capital expenditure of any kind achieved because of commission of the offence; and

(c) any other matters that it considers relevant, including (for example)—

(i) the value per tonne or per kilometre of the carriage of the goods involved in the offence as freight; and

(ii) the distance over which any such goods were or were to be carried.

(4) However, in estimating the gross commercial benefit that was or would have been received or receivable from commission of the offence, the court is required to disregard any costs, expenses or liabilities incurred by the person or by an associate of the person.

(5) Nothing in this section prevents the court from ordering payment of an amount that is—

(a) less than 3 times the estimated gross commercial benefit; or

(b) less than the estimated gross commercial benefit.

(6) For the purposes of this section, a person is an associate of another if—

(a) one is a spouse, de facto partner, parent, brother, sister or child of the other; or

(b) they are members of the same household; or

(c) they are partners; or

(d) they are both trustees or beneficiaries of the same trust, or one is a trustee and the other is a beneficiary of the same trust; or

(e) one is a body corporate and the other is a director or member of the governing body of the body corporate; or