January 17, 2018
What is a Fraud Offence?
As Fraud is often considered a pre-meditated or manipulative crime, it is looked upon very seriously by the court system. The offence can carry penalties of up to 10 years imprisonment, and the relevant laws, as set out in the Crimes Act, are complex and very specific, so it is particularly important to seek professional advice.
The Offence of Fraud
Under Section 192E of the Crimes Act 1900, a Fraud offence is committed when:
The accused commits an act of deception; and by that act;
Obtains property belonging to another, or obtains a financial advantage or causes financial disadvantage; and
The obtaining of that property or advantage or causing of that loss is dishonest (as defined).
Factors the Court will consider when sentencing a Fraud offence include:
- The amount of money involved
- Whether the loss is irretrievable
- The length of time over which the offence(s) were committed
- Systematic dishonesty – degree of planning, sophistication or repetition
- Any breach of trust
- Impact on the victim(s).
- Demonstrating remorse by making restitution to the parties is a mitigating factor in sentencing.
Some of the possible defences available to a charge of Fraud include:Duress: forced through actual threats to yourself or people close to you to cause you to offend.
Necessity: urgent circumstances that caused you to offend.
Mitigating circumstances: external events that led up to or caused the incident.
Types of fraud
What is Centrelink Fraud?
Centrelink is likely to charge you with Centrelink fraud if the amount overpaid is not trivial and if Centrelink believes that you intentionally and knowingly engaged in conduct to obtain more money than you were entitled. In other words, what you did was more than just carelessness or negligence. For example, you intentionally failed to declare your income so you would be paid more benefits than you were entitled to.
This is a Commonwealth offence and is therefore prosecuted by the Commonwealth Director of Public Prosecutions (DPP). The matter is commenced and finalised in the Local Court.
Examples of situations where offending often occurs are:
- Getting a payment from Centrelink while getting income from a source other than working
- Living with someone while claiming to live alone
- Getting a payment from Centrelink for children not in your care
- Getting a payment from Centrelink while no longer studying
- Using more than one name to get payments from Centrelink
- Getting more than one payment from Centrelink
- Getting Rent Assistance when you are not paying rent.
The most common charge in these matters is obtaining a financial advantage from a Commonwealth entity, as prescribed in section 135.2(1) Criminal Code 1995 (Commonwealth). This carries a maximum penalty of 12 months imprisonment and/or a fine of $6,600.
However, in some cases the prosecution may decide that the conduct alleged is so serious that the matter should be dealt with in the District Court. This means that maximum penalties increase (up to 10 years imprisonment), and the matter will be heard and determined in the District Court before a Judge and possibly a jury if the matter is defended.
Other less commonly charged offences carry reduced penalties, such as making a false statement in a claim for a benefit, s136 Criminal Code 1995 (Cth).
- Lack of intent to defraud
- Centrelink employee error