Customs Act 1901

PART XIII - PENAL PROVISIONS  

Division 3 - Recovery of Pecuniary Penalties for Dealings in Narcotic Goods  

SECTION 243C   ASSESSMENT OF PECUNIARY PENALTY  

243C(1)   [Defendant]  

In this section, a reference to the defendant in relation to a proceeding under section 243B shall be read as a reference to a person against whom an order is sought in that proceeding.

243C(2)   [Value of benefits derived by defendant]  

In a proceeding under section 243B, the value of the benefits derived by the defendant by reason of his or her having engaged in a particular prescribed narcotics dealing, or in prescribed narcotics dealings during a particular period shall be assessed by the Court having regard to the evidence before the Court concerning all or any of the following matters:

(a) the moneys, or the value of the property other than moneys, 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,

by reason of the defendant's having engaged in that dealing or in prescribed narcotics dealings during that period;

(b) the value of any benefit, other than a benefit of the kind referred to in paragraph (a) that was provided for:

(i) the defendant; or

(ii) another person at the request or by the direction of the defendant,

by reason of the defendant's having engaged in that dealing or in prescribed narcotics dealings during that period;

(c) in the case of a prescribed narcotics dealing that consisted of selling or otherwise dealing in narcotic goods - the market value, at the time of the dealing, of similar or substantially similar narcotic goods;

(d) in the case of a prescribed narcotics dealing that consisted of the doing of any act or thing other than selling or otherwise dealing in narcotic goods - the amount that was, or the range of amounts that were, at the time the dealing occurred, ordinarily paid for the doing of a similar or substantially similar act or thing;

(e) the value of the defendant's property before, during and after he or she engaged in that dealing, or before, during and after that period, as the case may be;

(f) the defendant's income and expenditure before, during and after he or she engaged in that dealing, or before, during and after that period, as the case may be.

243C(3)   [Value of defendant's property]  

Where evidence is given in a proceeding under section 243B that the value of the defendant's property during or after the defendant engaged in a particular prescribed narcotics dealing, or during, or after the end of, a particular period during which he or she engaged in prescribed narcotics dealings, exceeded the value of the defendant's property before he or she engaged in that dealing, or before the commencement of that period, then, for the purposes of subsection (2) of that section, the Court shall, subject to subsection (4), treat the value of benefits derived by the defendant by reason of his or her having engaged in that dealing or in prescribed narcotics dealings during that period as being not less than the amount of the greatest excess.

243C(4)   [Excess due to unrelated causes]  

Where, after evidence has been given in a proceeding under section 243B that the value of the defendant's property during or after the defendant engaged in a particular prescribed narcotics dealing, or during, or after the end of, a particular period, exceeded the value of the defendant's property before he or she engaged in that dealing, or before the commencement of that period, the defendant satisfies the Court that the whole or a part of the excess was due to certain causes, being causes unrelated to his or her having engaged in that prescribed narcotics dealing, or in prescribed narcotics dealings during that period, as the case may be:

(a) if the defendant so satisfies the Court in respect of the whole of the excess - subsection (3) does not apply to the excess; or

(b) if the defendant so satisfies the Court in respect of a part of the excess - subsection (3) applies to and in relation to the excess as if it were reduced by the amount of that part.

243C(5)   [Officer may testify as to value of narcotic goods]  

In a proceeding under section 243B, a police officer or an officer of Customs who is experienced in the investigation of narcotics offences may testify:

(a) with respect to the amount that, to the best of his or her information, knowledge and belief, was the market value of narcotic goods at a particular time or during a particular period; or

(b) 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 (not being the selling or other dealing in narcotic goods) comprising a prescribed narcotics dealing,

notwithstanding any rule of law or practice relating to hearsay evidence, and his or her testimony is prima facie evidence of the matters testified to.

243C(6)   [Expenses disregarded]  

In calculating, for the purposes of a proceeding under section 243B, the value of benefits derived by the defendant by reason of his or her having engaged in a particular prescribed narcotics dealing, or in prescribed narcotics dealings during a particular period, any expenses or outgoings of the defendant in connection with that dealing, or those dealings, shall be disregarded.

243C(7)   [Value of benefit]  

The Court, in quantifying the value of a benefit for the purposes of this section, may treat as the value of the benefit the value that the benefit would have had if derived at the time when the valuation is being made and, without limiting this, may have regard to any decline in the purchasing power of money between the time when the benefit was derived and the time when the valuation is being made.

243C(8)   [Property of the person]  

For the purposes of this section, where property of a person vests in a trustee in bankruptcy, the property shall be taken to continue to be the property of the person.