Section 163: Limits on recoverable amount
721.This section places a limit on the amount that the court can order a person to pay (known as the “recoverable amount”). The “recoverable amount” cannot exceed the total value of the benefits derived by the offender (including those secured for a third party) in respect of which the order is made. The order must identify the benefits it relates to. Also the recoverable amount cannot exceed the funds available to the offender (the “available amount”). Subsection (2) also provides that the recoverable amount may be a nominal amount.
722.Subsection (3) provides that the order may include benefits derived by the offender up until the time the court makes its determination. But it cannot seek to include benefits that have already been subject to a previous order.
723.Where the offender receives a benefit in kind rather than cash, subsections (4) and (5) set out how the value of the benefit is determined. Subsection (4) provides that where the benefit is a benefit in kind rather than cash the value of the benefit is the market value at the time the benefit is received minus anything that the respondent (or in the case of a benefit secured for a third person, that person) paid for it. If a particular benefit has no market value, subsection (5) provides that the court can attribute to the benefit such value as is just and reasonable.
724.There may be circumstances where an offender receives payment from a publisher, but only a small part of the payment directly relates to material pertaining to a relevant offence. This could arise, for example, where a criminal is paid to write a series of magazine articles about his life, but only one article in the series relates to the relevant offence. Subsection (6) gives the court the discretion to decide what proportion of the benefit it is just and reasonable to attribute to the exploitation of material pertaining to the relevant offence.