Clarity Law

South East Queensland most trusted criminal law firm

 

The term “fraud” covers a broad range of behaviours that fall outside the narrower offence of stealing but are nevertheless designed to deprive someone else of their property, or some interest therein. The common thread that ties these behaviours together is that they are done “dishonestly.”

All States and Territories in Australia have fraud offences as part of their criminal law. There are also Commonwealth fraud offences designed to prosecute offences committed against the Commonwealth Government, its departments, or Government-owned corporations. While these various offences share commonalities, there are also some significant differences between them.

This brief guide provides an overview to fraud offences throughout Australia with a focus on Queensland and Commonwealth offences.

 

Fraud in Queensland

What is Fraud?

Section 408C of the Criminal Code 1899 (Qld) lists specific actions that, when done dishonestly, constitute fraud:

  • applying someone else’s property for your own use;
  • obtaining property from another person;
  • inducing a person to deliver property to someone else;
  • gaining a benefit for someone else (including yourself);
  • causing a detriment to someone else;
  • convincing someone to do something they are otherwise entitled to abstain from doing;
  • convincing someone to abstain from doing something they are otherwise entitled to do;
  • making off before paying, knowing that payment is expected for goods or services.

There is considerable overlap between fraud and stealing. In certain circumstances, the prosecution may choose to charge you with either stealing or fraud. In other circumstances, you may find yourself charged with stealing and fraud. For example, if you take someone else’s property and sell it to a pawnbroker, you may be charged with stealing of the person’s property, and with fraud for receiving payment from the pawnbroker (by dishonestly stating that you are the lawful owner of the property).

In addition, other sections of the Criminal Code 1899 (Qld) create similar, fraud-like offences. For example, s 408D creates the offence of dealing with someone else’s identification information in order to commit a further offence. Computer hacking is an offence under s 408E “Concealing” documents (such as title documents relating to property, wills, etc) in order to defraud someone is an offence pursuant to s 399 of the Criminal Code 1899 (Qld). Again, there is overlap between these offences and the offence of fraud.

 

What is Dishonesty?

Under Queensland law, “dishonesty” is determined by “the standards of ordinary honest people”. In other words, an action is deemed to be dishonest by the objective standards of the community, regardless of whether you genuinely believed that you were being dishonest. Nevertheless, in deciding whether you acted “dishonestly” (according to this objective standard) your knowledge, belief, or intent at the time may be relevant (among other things).

 

Penalties

The maximum penalties for fraud depending on (a) the value of the property defrauded, (b) whether there is a specified relationship between you and the victim, or (c) whether you “carried on the business” of fraud. The latter attracts a maximum penalty of 20 years’ imprisonment, as does defrauding someone of property worth $100,000 or more.

A maximum penalty of 14 years’ imprisonment applies if you have a certain type of relationship to the victim. Specifically, if you are:

  • A director or officer of a company and you defraud the company;
  • An employee and you defraud your employer;
  • You are a trustee (or similar) and you defraud the trust.

The same maximum penalty applies if you defraud someone of property worth between $30,000 and $100,000.

 

Fraud in Other States and Territories

In Australia, all States have their own criminal legislation. There are some, minor differences between these various jurisdictions as to what constitutes fraud. For example, New South Wales fraud offences must be done “by deception” in addition to “dishonestly”. The New South Wales definition of “dishonesty” also contains the same objective and subjective standards as Commonwealth offences (discussed below).

This is important to keep in mind, especially when entering into property transactions using online services. Although you may live in Queensland, and perform a fraudulent transaction from your computer which is located in Queensland, you may still be liable under the law of another State or Territory (or even under the law of another country). For example, if you use an online, classified ad platform to lure your victim(s), you may be charged according to the location you have associated with the advertisement (and thus, the location of your victim), not necessarily where you live.

 

Commonwealth Fraud Offences

In addition to fraud offences under the laws of the various States and Territories, the Commonwealth Criminal Code 1995 also contains fraud and fraud-like offences. Being laws of the Commonwealth, they apply uniformly to all the States and Territories. The Commonwealth also claims an “extended” jurisdiction, which means that you can be charged with Commonwealth offences even if you committed the offences while outside of Australia.

 

What is Fraud?

The Criminal Code 1995 (Cth) contains numerous fraud offences and fraud-like offences. What links the offences is the victim: it must be a “Commonwealth entity” who is defrauded in order to trigger the jurisdiction of the Commonwealth. A “Commonwealth entity” is defined as either the Commonwealth itself or a “Commonwealth authority.” In practice, this usually relates to either a Government Department or a Corporation owned by the Commonwealth (for example, Centrelink).

The Commonwealth legislation refers explicitly to fraudulently obtaining either “property” or a “financial advantage”. Some charges require there to be the additional element of “deception” in addition to “dishonesty”. Other offences only require only you have gained an advantage, caused a loss, or gained a financial advantage dishonestly.  

The most common fraud offences we deal with involve receipt of payments from Centrelink (or other Government welfare departments / agencies) where the person receiving the payments is no longer entitled to either the entire benefit or to the full amount of the benefit received. Centrelink and other benefits are paid on certain conditions. These conditions include an obligation to inform the Government department or agency of any changes in financial circumstances. Failure to do so will (in most cases) constitute the fraudulent conduct. The particular circumstances of each case will determine whether the additional element of “by deception” is present. The overpayments received are the “financial benefit” derived.

Other fraud and fraud-like offences contained in the Criminal Code 1995 (Cth) include making off without payment, conspiracy to defraud, dishonest taking or retention of property, etc.

 

What is Dishonesty?

Commonwealth legislation requires dishonesty to be established by two standards. The first requires the conduct to be considered “according to the standards of ordinary people.” Similar to Queensland legislation, this standard is an “objective” one and does not take into account your own beliefs about the nature of your conduct. Put differently, if ordinary people would not view your actions as dishonest, then it does not matter whether you thought you were being dishonest. The prosecution fails at this point, and you can expect to be found not guilty of a fraud offence.

However, if your actions are dishonest according to the standards of ordinary people, it must then be proved that you knew that your actions were dishonest according to this standard. This is the second, “subjective” standard. It is important to note that this subjective standard only enquires about your awareness of community standards, not whether you viewed your actions as dishonest according to your own standards. Suffice to say that only in rare cases might it be proved that the accused person was not aware that their actions could be viewed as dishonest.

 

Penalties

The maximum penalties for fraud and fraud-like offences range from 12 months’ imprisonment to 10 years’ imprisonment.

 

We have an entire page devoted to Centrelink Fraud

 

Tax Fraud

The law is very strict on payment of taxes since it is one of the major sources of government’s income. A typical example for tax evasion is a situation where an individual or a business deliberately fails to pay the tax due or misstates their income or expenses.   For instance, the Australian Taxation Office considers following situations as tax evasion;

  • failing to declare assessable income,
  • claiming deductions for expenses that were not incurred ,
  • claiming input credits for goods that goods and services tax (GST) has not been paid on,
  • failing to pay  “the pay as you go” (PAYG) instalments that have been deducted from a payment,   and
  • failing to lodge tax returns.

 

To be found guilty of tax evasion, an intention to defraud the tax agencies must be present. There can be situations where a person fails to include correct information by accident or mistake. It would be unfair if the law treated these persons and others who intentionally provide incorrect or misleading information in order to reduce their tax liabilities alike.  Therefore, if it is your mistake which caused you to include incorrect information on the forms you will only be liable to a lesser offence, but you will have to convince the Judge of your mistake. But in other cases where a person’s failure to comply with requirements was intentional (or where he could not prove in court that his conduct was not intentional) they will be liable to severe penalties.

Since tax evasion is a serious offence throughout Australia the maximum punishment can be 10 years imprisonment.

 

Other Fraud Charges

There are numerous other potential fraud charges that can be imposed, these include

  • Obtaining property that belongs to someone else
  • gaining a benefit or advantage illegally
  • inducing someone to deliver a product to someone else
  • computer fraud

If you have a fraud charge then get in contact with us to discuss.

 

Pleading guilty

If you are charged with a fraud charge and you are pleading guilty you will generally appear before a Magistrate but this depends on the amount of the fraud.  In Queensland over 90% of matters are dealt with in the Magistrates Courts. A Magistrate when sentencing you for this offence will take into account the facts of the case, any previous criminal history and your personal circumstances. The best way to ensure a successful outcome is to make sure your circumstances and the facts of the case are put in a clear and concise way before the Magistrate.  If you are seeking for no conviction to be recorded it is important that the Magistrate understands how having a criminal record might affect you in the future. 

The court, depending on the charges might look at imposing one or more the following penalties

1.      Good behaviour bond

2.      Fine

3.       Community service

4.       Probation

5.       Suspended jail sentence

6.       Intensive Correction Order (ICO)

7.       Imprisonment

 

Pleading not guilty

You can enter a plea of not guilty to a fraud charge and elect to take the matter to a trial. If the matter is dealt with in the Magistrates Court then it heard before a Magistrate, if the matter is in the District or Supreme Court then your matter will be decided by a jury. If you plead not guilty, a brief of evidence will be served upon your lawyers. The brief of evidence contains all the evidence against you usually consisting of statements by witnesses and any forensic evidence including analysis of the type and amount of drugs alleged to have been involved. At the trial witnesses, police and any experts attend Court to give evidence orally. The witnesses are then made available for cross-examination by your lawyers. You have the right to give evidence at your trial or elect not to give evidence at all.

 

Defences

A number of defences may be available to a fraud charge these include;

  • honest and reason mistake
  • that you had relevant permission to take the goods or money
  • duress
  • necessity

We will be able to advise you if we believe you have a defence available to you.

 

What have you achieved for clients in the past?

Case study 1 Client charged with defrauding the ATO by failing to lodge BAS statements and income tax returns, total amount outstanding was $50,000.  Client received fine only

Case study 2 Client charged with fraudulently taking home over 2,000 items of clothing from her employer.  Client received probation only

Case study 3 Client defrauded over $48,000 from elderly and infirmed people in her care.  Client received a jail sentence but it was less than half what it should have been

 

Do I need a lawyer?

Do not attempt to represent yourself in the court on an fraud charge as the risk of jail or the recording of a conviction is too high.  

 

Engaging Clarity Law to act for you

Engaging us gives you the best chance at obtaining avoiding a jail sentence or not having a conviction recorded.   We are the leading criminal law firm in South East Queensland.  We appear every week in the courts with people charged with criminal offences, it is this experience that allows us to get the best result for clients.  Other law firms simply don’t have the experience that we do and don’t know the judges like we do.  Just some of the benefits of us acting for you include;

  1. we know the judges and what they want to hear to give you the best outcome
  2. we have good relationships with the police prosecutors meaning we can often have them not seek a jail sentence
  3. we are there to help you through the process and make everything as stress free as possible, in most cases you will not have to say anything in court
  4. engaging us shows the court you are taking your charges seriously
  5. your matter will be heard early, often first, you do not have to wait for 20-30 other matters to be heard before you
  6. you will be fully informed of what is to happen in court and what this means for you after court
  7. unlike the police or the Judge, we are there to look after you, your privacy and your interests

 

 

What courts do you appear in?

We appear in every court in South East Queensland.  Just some of the courts we appear in for drug offences are;

Beaudesert Magistrates Court

Beenleigh Magistrates Court

Brisbane Magistrates Court

Caloundra Magistrates Court

Caboolture Magistrates Court

Cleveland Magistrates Court

Coolangatta Magistrates Court

Gatton Magistrates Court

Gympie Magistrates Court

Holland Park Magistrates Court

Ipswich Magistrates Court

Maroochydore Magistrates Court

Nambour Magistrates Court

Noosa Magistrates Court

Pine Rivers Magistrates Court

Richlands Magistrates Court

Redcliffe Magistrates Court

Sandgate Magistrates Court

Southport Magistrates Court

Toowoomba Magistrates Court

Wynnum Magistrates Court

 

For a full list of Courts we appear in click here.

 

Will I need to come in to the office to see you?

We have offices in Brisbane, Brendale, Loganholme and on the Gold Coast and Sunshine Coasts but in most cases we can handle everything by email and the phone without you ever having to come into our office.  We are also open outside normal business hours for your convenience.

 

What do you charge?

We charge a flat upfront fee for our services that means no hidden charges or unexpected bills.  We don't charge any travelling fees either; if you are in Maroochydore or Southport you will pay the same price as if you are Brisbane.

We are also upfront with our fees, if you look at other law firms few, if any, clearly list how much they are going to charge you.  Clarity Law on the other hand are happy to list our prices as we are sure no other South East Queensland law firm can match our prices and experience. Our prices include;

  • full preparation for court including checking for defences and devising strategy to minimise penalty
  • negotiations with the police prosecution unit including obtaining criminal history and charge documents
  • drafting submissions for the court
  • advising you on how to obtain character references
  • all telephone calls, faxes emails and meetings with you
  • detailed information to you on the likely penalty and information on what will happen at court and afterwards
  • appearing in the court with you to conduct your guilty plea

To see what we will for a guilty plea on a fraud charge click here.  If you are wishing to plead not guilty or the charge is very serious we will provide a fixed price written quote.

 

How do I get more information or engage you to act for me?

If you want to engage us or just need further information or advice then you can either;

 

  1. Use our contact form and we will contact you by email or phone at a time that suits you
  2. Call us on 1300 952 255 seven days a week, 7am to 7pm
  3. email This email address is being protected from spambots. You need JavaScript enabled to view it.