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FRAUD CHARGES

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Charged with Fraud?

Fraud offences are white-collar crimes and are often viewed as victimless crimes. However, the reality is there is always a victim. Whether it is a multinational company (with a flow on effect to customers) , government department (with a flow on effects to tax payers) or every day people. If you have been charged with fraud offences, don’t risk it. Contact our office for a free initial consultation from one of our criminal law experts to ensure the best possible outcome for your matter.

The offence of fraud and related offences are covered under the Crimes Act 1900 (NSW) and the Criminal Code Act 1995 (Cth). In Australia, all the elements of the offence must be proven beyond a reasonable doubt and as a result, fraud offences can be difficult to prove. The prosecution has the discretion to prosecute the matter in the Local Court or District Court depending on the seriousness of the alleged offence. 

Fraud charges and conviction may result in a criminal record. This can have a serious long-term impact on other areas of your life such as employment, applying for and maintaining professional licences, family law proceedings, ability to apply for loans and insurance, overseas travel, etc.

How serious is a fraud charge?

Fraud is a white collar crime and is not a victimless crime. Fraud and fraud related offences are both State and Commonwealth criminal offences. They are also complex offences and can be difficult to prove. If you have been charged, contact our law firm for a free initial consultation from one of our criminal lawyers.

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    NSW Fraud offences

    In NSW, fraud is investigated by the NSW Police and prosecuted by Police Prosecutors or the Office of the Director of Public Prosecutions (DPP).

     

    What is fraud?

    If you, by any deception, dishonestly – 

    • Obtain property belonging to another, or,
    • Obtain any financial advantage or causes any financial disadvantage,

    You are guilty of an offence.

    The maximum penalty for this offence is ten years imprisonment.

    A conviction for larceny may be an alternative to a conviction for fraud.

    Intention to defraud by destroying or concealing accounting records

    If you dishonestly destroy or conceal any accounting records with the intention of – 

    • Obtaining property belonging to another, or
    • Obtaining a financial advantage or causing a financial disadvantage, 

    you are guilty of an offence.

    The maximum penalty for this offence is five years imprisonment.

    Intention to defraud by false or misleading statement

    If you dishonestly make or publish, or concur in making or publishing any statement (whether or not in writing) that is false or misleading in a material particular with the intention of – 

    • Obtaining property belonging to another, or 
    • Obtaining a financial advantage or causing a financial advantage, 

    you are guilty of an offence. 

    The maximum penalty for this offence is five years imprisonment.

    Intention to defraud members or creditors by false or misleading statement of officer of organisation

    If you are an officer of an organisation who, with the intention of deceiving members or creditors of the organisation about its affairs, dishonestly makes or publishes, or concurs in making or publishing, a statement (whether or not in writing) that to your knowledge is or may be false or misleading in a material particular, you are guilty of an offence.

    The maximum penalty for this offence is seven years imprisonment.

    fraud offence lawyer

    Summary Court Process (Local Court)

    Fraud matters prosecuted summarily will be heard in the Local Court. 

    The Local Court process is as follows:

    STEP 1

    Seek good legal advice

    Contact our criminal defence law team and book an initial consultation

    STEP 1

    STEP 2

    Mention hearing

    This is the first court date for your matter. It essentially brings it to the attention of the court. You can plead guilty at this stage after receiving legal advice and the matter will be finalised. If you plead not guilty, the court will adjourn your matter and set another court date. The court will set a date for each party to produce their evidence (brief mention). You should use this time to gather any supporting evidence such as character references.

    STEP 2

    STEP 3

    Brief Mention

    Each party must produce their evidence to the court and each other. Another court date will be set for hearing

    STEP 3

    STEP 4

    Defended hearing

    both parties will present their argument to the court. The court will make their decision and issue a sentence where appropriate.

    STEP 4

    Local Court sentencing options

    There are many sentencing options available to the Local Court. 

    Pleading guilty at the earliest opportunity may entitle you to a 25% reduction in your sentence. However, you should NOT plead guilty until you have received legal advice, to ensure the best possible outcome for your matter.

    Section 10

    A section 10 is the best possible outcome in the event the court finds you guilty of a fraud offence. There are three orders available to the court under section 10 of the Crimes (Sentencing and Procedure) Act where the court believes it is inappropriate to further punish an offender. 

    • Section 10 (1) (a)- dismissal with no conviction recorded
    • Section 10 (1) (b)- dismissal with no conviction on conditions set by the court. For example, not to commit an offence for a period of two years – a form of good behaviour bond
    • Section 10 (1) (c)- dismissal with no conviction on the condition that the offender enters into an intervention program. For example drug and alcohol counselling. 

    A section 10 is an acknowledgement of the court that you have committed an offence, however, the court is satisfied that it is out of character and you are unlikely to continue offending. It’s the court’s way of giving you a second chance.

    Before granting a section 10, the court will consider:

    • Your criminal history. 
    • Your character, antecedents, age, health and mental condition, etc
    • The trivial nature of the offence
    • Extenuating circumstances that lead to the offence being committed 
    • Any other matter the court considers relevant

    Intensive Correction Order

    Intensive Corrections Orders are an option available to the court where a sentence of imprisonment is imposed on the condition that a defendant is of good behaviour and agrees to supervision by a community corrections officer rather than go to prison. 

    Additional conditions that may be imposed by the court include:

    • home detention
    • electronic monitoring
    • curfew
    • community service (up to 750 hours)
    • participation in rehabilitation or treatment programs, for example, drug treatment/counselling
    • no drugs or alcohol
    • refrain from certain relationships/associations, for example, drug dealer, etc.
    • ban from certain locations

    Community Correction Order

    Community Corrections Orders are similar to Intensive Corrections Orders. The main exception being that a defendant needs to make themselves available to attend court at any time the court requires.

    Conditional Release Order

    A Conditional Release Order is similar to an Intensive Corrections Order or Community Corrections Order. A Conditional Release Order can be issued with or without a conviction recorded.

    Section 32

    A section 32 is a diversionary option available under the Mental Health (Forensic Provisions) Act 1990 (NSW). If a defendant is, or at the time the offence occurred:

    • cognitively impaired
    • suffering from mental illness
    • suffering from a mental condition for which treatment is available in a mental health facility

    The options available to a magistrate under a section 32 include:

    • adjourning the matter
    • granting the defendant bail
    • any other order the magistrate deems appropriate
    • dismissing the charges and discharging the defendant into the care of a responsible person (e.g. a parent) on the condition they attend a specified place for assessment or treatment.

    Indictable Court Process (District or Supreme Court)

    STEP 1

    Seek good legal advice

    Contact Jameson Law for a free initial consultation

    STEP 1

    STEP 2

    Bail Application

    An application for bail may need to be made if bail isn’t granted earlier

    STEP 2

    STEP 3

    Committal Hearing

    This a hearing to determine if there is enough evidence to proceed to trial. If there isn’t enough evidence, that is the end of the matter. If there is enough evidence, the matte is adjourned and a new court date is set.

    STEP 3

    STEP 4

    Case Conferences

    Case conferences may take place between the committal and the trial. 

    STEP 4

    STEP 5

    Trial

    Both parties will present their argument to the court. This can take a number of weeks or months depending on the seriousness of the matter and the number of charges. The jury will make a determination of guilt. If they find you guilty, the court will adjourn and a new date set for sentencing. This gives the judge an opportunity to review the evidence and work out the most appropriate sentence. The court may ask for additional information to inform sentencing such as pre-sentencing reports from Corrective Services, etc.

    STEP 5

    STEP 6

    Sentencing

    The judge will hand down his or her sentence and their reasons for the decision.

    STEP 6

    Commonwealth fraud offences

    The Office of the Commonwealth Director of Public Prosecutions prosecute frauds committed against Commonwealth services such as Centrelink fraud and mail fraud. Commonwealth authorities such as the Federal Police and ASIC investigate fraud cases, however, prosecution for these matters occurs in the courts of the Australian State or Territory that the offence has occurred in. See above for information on the summary and indictable court processes for NSW, as well as alternative sentencing options. 

     

    Obtain a property by deception

    If you – 

    • By deception, dishonestly obtain property belonging to another person with the intention of permanently depriving them of that property and, 
    • The property belongs to a Commonwealth entity,
    • you are guilty of an offence. 

    The maximum penalty for this offence is ten years imprisonment.

     

    Obtain a financial advantage by deception

    If you – 

    • By deception, dishonestly obtain a financial advantage from another person, and 
    • The other person is a Commonwealth entity,
    • you are guilty of an offence.

    The maximum penalty for this offence is ten years imprisonment.

     

    General dishonesty – obtaining a gain

    If you – 

    • Do anything with the intention of dishonestly obtaining a gain from another person, and
    • The other person is a Commonwealth entity,
    • you are guilty of an offence. It is not necessary to prove that you knew the other person was a Commonwealth entity.

    The maximum penalty for this offence is ten years imprisonment.

     

    General dishonesty – causing a loss

    If you – 

    • Do anything with the intention of dishonestly causing a loss to another person, and
    • The other person is a Commonwealth entity,
    • you are guilty of an offence. It is not necessary to prove that you knew the other was a Commonwealth entity.

    The maximum penalty for this offence is ten years imprisonment.

     

    General dishonesty – causing a loss to another

    If you – 

    • Dishonestly cause a loss, or dishonestly cause a risk of loss, to another person, and
    • You know or believe that the loss will occur or that there is a substantial risk of the loss occurring, and
    • The other person is a Commonwealth entity,
    • you are guilty of an offence. 

    The maximum penalty for this offence is ten years imprisonment.

     

    Influencing a public Commonwealth official

    If you –

    • Conspire with another person with the intention of dishonestly influencing a public official in the exercise of the official’s duties as a public official, and
    • The public official is a Commonwealth public official, and
    • The duties are duties as a Commonwealth public official,
    • you are guilty of an offence. It is not necessary to prove that you knew the person was a Commonwealth public official or that they were duties as a Commonwealth public official.

    The maximum penalty for this offence is ten years imprisonment. 

    It is a defence if:

    • All other parties to the agreement have been acquitted and a finding of guilt would be inconsistent with their acquittal
    • Before the commission of an overt act pursuant to the agreement, you withdraw from the agreement and take all reasonable steps to prevent it.

    Disclaimer

    The above is general legal information and should not be considered legal advice. You should speak with one of our criminal defence lawyers for legal advice tailored to your specific legal matter. The penalties listed are maximum penalties. The courts deal with matters on a case by case basis. It should also be noted that there may be court delays due to COVID-19.

    Frequently Asked Questions.

    If a fraud has been conducted on Australian soil, it may be possible to investigate and find the offending parties, for example an employee who steals from their employer. However, if a fraud has been conducted overseas, even though it has victims in Australia, Australian authorities have no jurisdiction. For example, an online romance scam.

    There are a number of ways you can report a fraud:

    • Report any suspicious account transactions to your bank and/or service providers
    • At your local police station
    • Using the ACORN website to report cyber fraud
    • Scamwatch website
    • Insurance Council of Australia (for insurance fraud)
    • AusTrade fraud hotline
    • The amount of money involved
    • Motive
    • The degree of planning and sophistication
    • The length of time over which the offences occured
    • An accompanying breach of trust. For example, you were working as an accountant and used your position to defraud the victim.

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