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.
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.Legal technicalities.
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
What is a Forgery Offence?
A person is guilty of Forgery who makes, uses or intends to use a false document with the intention to induce another person to accept it as genuine, and:
• Obtain property belonging to another;
• Obtain any financial advantage or cause any financial advantage; or
• Influence the exercise of public duty.
Inducing a person to accept a false document includes any instance in which a machine is caused to respond to the document as if it were a genuine document.
The offence of Forgery carries a maximum penalty of 10 years.
A person who deals in identification information with the intention of committing or facilitating the commission of an indictable offence is guilty of a Fraud offence.
What is ‘Identification Information’?
Identification information means information relating to a person (whether living or dead, real or fictitious, individual or body corporate) that is capable of being used to identify the person and includes:
• Name or address,
• Date or place of birth, marital status, relative’s identity or similar information,
• Driver license or driver license number,
• Passport or passport number,
• Biometric data,Voice print,
• Credit or debit card, its number or data stored or encrypted on it,
• Financial account number, user name or password,
• Digital signature,Series of numbers or letters (or both) intended for use as a means of personal identification,
The maximum penalty for this type of offence is 10 years imprisonment. The maximum penalty for possession of identification information with a like intention to commit an offence is 7 years imprisonment.
A person who possesses any equipment, material or other thing that is capable of being used to make a document or other thing containing identification information and intends that the document or other thing made will be used to commit or to facilitate the commission of an indictable offence, is guilty of an offence carrying a maximum of 3 years imprisonment.
It is illegal to obtain, or attempt to obtain, reimbursement from a Medicare program under false pretences, knowing or believing that you are not eligible to obtain such a benefit.
Examples of Medicare Fraud
• Making Medicare claims for services that were not provided
• Using someone else’s Medicare card
• Using an invalid concession card
• Forging prescriptions for PBS medicines
• Making PBS claims for medicines that were not provided
• Swapping PBS prescription medicines for other pharmacy items or goods
• Taking or sending PBS medicine overseas that is not for your personal use or the personal use of someone travelling with you.
Under the Commonwealth Criminal Code 1995 there is a range of different offences that a person who commits tax fraud can be convicted of. Broadly, the charge may be laid where the accused has obtained a financial advantage from a Commonwealth Entity (which includes the Australian Tax Office or the Commonwealth generally) where that advantage is obtained by deception.
The maximum penalty for the most common Tax Fraud offence, ‘Obtain a Financial Advantage by Deception’, is imprisonment for up to 10 years.
An example of a further offence is ‘Conspiracy to Defraud’. A person commits this offence if the person:
• Conspires with another person;
• Does so with the intention of dishonestly obtaining a gain for a third person; and
• The third person is a Commonwealth Entity.
• The penalty for this offence is also imprisonment for up to 10 years.
There is also a range of other comparatively less serious offences that might be committed in theprocess of completing one’s tax affairs, which carry significantly lesser penalties.
There are many nuanced defences available to the charge of Tax Fraud, the most simple of which include:
• You made an honest and reasonable mistake of fact in dealing with your tax affairs
• Your motive was not to deceive.