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.
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.
Case Study
Ellen Louise Howard from Aberdare near Newcastle is currently defending 16 charges of dishonestly obtain financial benefit by deception. It is alleged that she fraudulently applied for 34 NSW Government support and recovery payments intended for people affected by COVID-19 and bushfires. Out of the 34 applications made, 11 were granted. In total, Ellen fraudulently received $104,000. Police Prosecutors argued against bail because Ellen’s offending had taken place online and she was currently serving an Intensive Corrections Order for previous larceny and fraud offences. In addition, she has repeatedly failed to attend previous court dates resulting in a warrant for her arrest. The Registrar refused bail and a new court date was set. Her matter is still before the courts.
Intention to defraud by destroying or concealing accouting 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.
Case Study
Rafat Alemmandine, from Merrylands near Parramatta, was convicted and sentenced to a 15 month suspended prison sentence and good behaviour bond for obtaining vehicle finance using false documents and false guarantors. He was alleged to have conducted the fraud as part of a criminal group. Rafat has a criminal history involving previous dishonesty offences. The finance company attempted to claim compensation from Rafat, however, the court refused and stated multiple parties were involved so it would be unfair to attribute the fraud to one person.
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.
Summary Court Process (Local Court)
Fraud matters prosecuted summarily will be heard in the Local Court.
The Local Court process is as follows:
In a nutshell...
The State prosecutes fraud offences committed against an individual, business (not a Commonwealth entity) or the State Government. The maximum penalty for these offences range from seven to ten years imprisonment. For the best possible outcome for your matter, contact our criminal law team for a free initial consultation.
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.
In a nutshell...
Entering a guilty plea at the earliest opportunity may result in a non-custodial sentence. You should NOT plead guilty until you have received legal advice. To get the best possible outcome for your matter, contact our law firm for a free initial consultation from our experienced criminal lawyers.
Indictable Court Process (District or Supreme Court)
In a nutshell...
The indictable court process can be complex and lengthy. It is important to have an expert on your side. Contact our office for a free initial consultation.
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.
In a nutshell...
Commonwealth fraud offences involve a fraud committed against a Commonwealth entity (government business or department). If convicted, you could face up to ten years imprisonment. Don’t go it alone. If you have been charged with a Commonwealth fraud offence, contact our office for a free initial consultation from one of our experts.
Case Study
The case of Melissa Caddick, the Sydney business woman accused of an elaborate Ponzi scheme, has made national headlines for several months. She is accused of defrauding a total of $30 million from friends and family who she encouraged to invest with her wealth management business. Caddick is accused of falsely claiming she had a Financial Service Licence, instead using her friend’s licence. She is also accused of creating and sending false documents with the Commonwealth Bank header to show investors they were making a monthly profit. In total, ASIC, Australia’s corporate watchdog accused Melissa of 38 offences. Caddick’s scheme came undone when the wife of a potential investor conducted due diligence. The AFP, acting on behalf of ASIC, conducted a search of her property and accounts. She disappeared the following day. Following Caddick’s disappearance and subsequent suspicion of death, ASIC has dropped all criminal charges to allow the civil law proceedings to begin and provide victims with an opportunity to recoup their losses. In the event Caddick is in fact alive, ASIC will reinstate the charges.
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.
Related Criminal Law News and Resources
FAQs
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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