Orders for forfeiture

As well as the power to fine and imprison, courts have the power under the Criminal Assets Confiscation Act 2005 (SA) to order the forfeiture of articles involved in a criminal offence (for example, drugs or pipes), property acquired for the purpose of committing the offence (for example, land to grow cannabis commercially, equipment to irrigate, trucks to transport) or the proceeds or profits from the offence. If a serious drug offence has occurred (such as trade), or a person has become a prescribed drug offender, then any tainted property may be forfeited or restrained.

Assets may be forfeited if acquired with proceeds of offence

Assets may also be taken if they have been acquired from the proceeds of an offence. Where it is not possible to tell the extent of the contribution from the proceeds of offences, the whole of the tainted property can be forfeited. Where an innocent person has an interest in the same property, the court may order that the person be compensated. Property (such as the family home or car) might not be forfeited if it would cause disproportionate hardship to innocent people.

Freezing orders and restraining orders

Even before a person is convicted of an offence, courts have the power to:

until the question of forfeiture is decided.

It is an offence to fail to comply with a freezing order, with a maximum penalty of a fine of $100,000 [s 22].

It is also an offence to dispose of or deal with property contrary to a restraining order, with a maximum penalty of a fine of $100,000 or imprisonment for 4 years [s 33].

Prescribed drug offenders

The court has specific powers to seek forfeiture and restraining orders for all property of prescribed drug offenders, regardless of whether that property was acquired through the proceeds of an offence.

A prescribed drug offender is defined in s 6A as a person convicted of a serious drug offence (an indictable offence against Part 5 Division 2 or 3 of the Controlled Substances Act 1984 (SA)) where either:

Immediately on a person becoming a prescribed drug offender, a forfeiture order will be taken to have been made by the convicting court [see s 56A(1)]. This is known as a deemed forfeiture order. Upon conviction, all property owned by a prescribed drug offender will be forfeited to the Crown, aside from protected or excluded property [see s 56A(2)]. This means that a prescribed drug offender's property does not have to be acquired through the proceeds of an offence to be forfeited or restrained [see definition of tainted property in section 3].

The court can order that certain property be excluded from a forfeiture order, in circumstances where, for example, the prescribed drug offenderhas cooperated with a law enforcement agency [see s 59A], or where it would be contrary to the financial interests of the Crown to have the property forfeited [see s 59B].

Justice Rehabilitation Fund

The proceeds of any confiscated assets forfeited to the Crown upon the conviction of a prescribed drug offender are first applied towards the costs of administering the Criminal Assets Confiscation Act 2005 (SA), with the remainder paid into the Justice Rehabilitation Fund [s 209A(4)]. This Fund sits separately from the Victims of Crime Fund and enables the Attorney-General to fund programs and facilities, for the benefit of offenders, victims and other persons, that will further crime prevention and rehabilitation strategies [see s 209A(5)]. In addition to any proceeds garnished from prescribed drug offenders, State Parliament or the Attorney-General can also allow for additional funds to be paid into the Justice Rehabilitation Fund [see s 209A(3)].