The AFP attempted to use the Proceeds of Crime Act to restrain property of innocent victims of money laundering. The circumstances of this case were highly suggestive of ‘cuckoo smurfing’. The WA Supreme Ct ordered the AFP to return the innocent victim’s money. I acted for the successful innocent parties in this matter.
There has been a lot of criticism leveled at authorities in many countries, particularly the US, over the use that is made of civil confiscations or proceeds of crime laws.
Without a doubt there have been abuses of these powers, just as there are from time to time abuses of criminal prosecution processes.
In this article a former US Federal prosecutor makes the case for civil forfeiture. It is a well-written piece by an eminently qualified author.
My only caveat is that I think the abuses that the US has seen have been at the State and County, not Federal, level.
The convergence of family law with criminal property confiscation or proceeds of crime proceedings can complicate matters for both criminal & family lawyers. I set out some basic principles and considerations when your client is affected by both family law and confiscation or proceeds of crime proceedings.
The High Court in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate held that regulators and respondents in civil penalty proceedings can agree a penalty, and that provided the Court is satisfied as to the appropriateness of the agreed penalty, it may impose it. The High Court expressly distinguished Barbaro v The Queen, which was concerned with criminal sentencing.
On 20 November 2015 I delivered a presentation on the Criminal Property Confiscation Act 2000 (WA) – Crime-Used and Crime-Derived confiscations cases.
Federal offenders are almost exclusively dealt with in State courts. In some matters courts have compared criminality in federal offending and state offending. As a result of this there has been some divergence in the range of sentences across the states and territories. The High Court in The Queen v Pham  HCA 39 held offenders should be sentenced in accordance with the range of sentences across all states and territories.
The High Court also affirmed the proposition that quantity of drugs is not the sole determiner of the appropriate sentence.
On 2 May 2015 the federal Treasurer, the Hon Joe Hockey MP, announced a reduced penalty period (running from 2 May to 30 November 2015) in which people who have purchased Australian real estate without the necessary approval (or contrary to the conditions on an approval) under the Foreign Acquisitions and Takeovers Act 1975 (Cth) can come forward and voluntarily disclose. The government is also aiming to amend the Foreign Acquisitions and Takeovers Act 1975 to increase criminal penalties and add civil penalties.
The Western Australian Court of Appeal has delivered an important judgment, R v Host, which considers the proper approach to sentencing an offender whose property has been the subject of orders made under the Proceeds of Crime Act 2002 (Cth). The Court gave detailed consideration to s 320 Proceeds of Crime Act 2002 (Cth). It allows for a sentence to be reduced where the offender has cooperated with proceeds of crime authorities.