Criminal and Civil Fraud Charges in Victoria
In Victoria, fraud charges and offences are legislated under the Crimes Act 1958 (Vic) and the Summary Offences Act 1966 (Vic). The Criminal Code Act 1995 (Cth) also legislates federal offences in relation to Centrelink fraud.
Less serious fraud charges are known as summary offences. Summary offences are dealt with in the Magistrates Court and can carry a maximum penalty of up to 2 years imprisonment. More serious indictable offences are heard in the County Court and carry a maximum penalty of more than 2 years imprisonment.
If you have been charged or are under investigation for a fraud offence, please contact Sher Criminal Lawyers immediately. Our team of defence experts specialises in fraud matters and is here to help you. We have years of experience advising and representing clients before the Magistrates and County Courts of Victoria. Our lawyers are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.
Obtaining Property or Financial Advantage by Deception
In regard to fraud offences in Victoria, the term ‘deception’ is given a specific definition under s81(4) of the Crimes Act 1958 (Vic). Deception includes words or conduct that:
- Is deliberate or reckless;
- Pertains to matters of fact or law; and
- Is false or deceitful.
It is an indictable offence in Victoria to obtain property by deception (s81 Crimes Act 1958). This charge carries a maximum penalty of 10 years imprisonment.
To prove the property was obtained by deception, the prosecution must prove beyond a reasonable doubt that the accused:
- Took ownership, control or possession of property belonging to someone else;
- Did so intending to permanently deprive the owner of the property; and
- Engaged in deception; and
- Knew they were acting dishonestly.
Similarly, it is an indictable offence to obtain financial advantage by deception (s82 Crimes Act 1958). This charge also carries a maximum penalty of 10 years imprisonment. The term financial advantage has been broadly interpreted under Victorian law and can pertain to a monetary advantage or anything that improves the financial situation of the accused (or an associated party).
To prove a financial advantage was obtained by deception, the prosecution must demonstrate beyond a reasonable doubt that the accused:
- Obtained financial advantage for themselves or another person;
- Engaged in deception; and
- Knew they were acting dishonestly.
Many acts might amount to obtaining property or financial advantage by deception. Some examples include:
- Making illegitimate insurance claims.
- Issuing illegitimate refunds to steal money from an employer.
- Using a stolen credit card to make purchases.
- Managing a pyramid scheme.
If you are charged with obtaining property or financial advantage by deception, it is important to have an experienced criminal lawyer assess your legal options. Depending on the evidence and circumstances, there may be some reasonable doubt as to whether the accused acted knowingly, dishonestly, deceitfully, intentionally or otherwise. The accused cannot be held criminally liable for the charge if all elements of the offence cannot be proven by the prosecution.
False Accounting and Falsification of Documents
False accounting is an indictable offence in Victoria (s83 Crimes Act 1958). This charge carries a maximum penalty of 10 years imprisonment. To prove a charge of false accounting, the prosecution must demonstrate beyond a reasonable doubt that the accused destroyed, defaced, concealed or falsified:
- Any record or document made or required for any accounting purpose;
- Knew they were acting dishonestly; and
- Intended to make a gain for themselves; or
- Intended to cause loss to another.
Falsification of documents is a similar but separate indictable offence in Victoria (s83A Crimes Act 1958). This charge also carries a maximum penalty of 10 years imprisonment. The falsification of documents involves intentionally using, possessing or forging documents that the accused knows to be false. The prosecution must also prove that the false documents were used:
- By another person to their (or someone else’s) disadvantage; or
- To induce another person to do or not do something, to their (or someone else’s) disadvantage.
Under the same law, it is also an offence to possess a machine designed or adapted for the intention of making a false document.
Many acts might amount to false accounting or falsification of documents. Some examples include:
- Making a fake ID to get into an 18+ venue.
- Forging a bank statement to get a loan.
- Hiding accounting information to win a business contract.
A defendant cannot be found guilty of false accounting or falsification of documents if the prosecution fails to prove any element of the crime. This is why it is important to have an experienced criminal lawyer assess your legal options. Depending on the circumstances and evidence available, there may be some reasonable doubt as to whether the actions of the accused amount to an offence.
Identity Crime
Part 1, Division 2AA of the Crimes Act 1958 (Vic) legislates offences pertaining to identity crime in Victoria.
Making, using or supplying identification information is an indictable offence in Victoria (s192B Crimes Act 1958). This charge carries a maximum penalty of 5 years imprisonment. To prove the offence, the prosecution must demonstrate beyond a reasonable doubt that the accused made, used or supplied identification information that:
- Was not identification information that related to them;
- Was aware (or knew there was a substantial risk) that the information related to identification; and
- Intended to use or supply the information to commit (or facilitate the commission of) an indictable offence.
Similarly, it is an offence to possess identification information (s192C Crimes Act 1958) under the same circumstances laid out in s192B. A charge of possessing identification information carries a maximum penalty of 3 years imprisonment. Essentially, this means that it is illegal to possess identification information that allows the accused to pretend to be someone else who is:
- Real (dead or alive); or
- Made up.
It is also an offence to possess equipment used to make identification documentation (s192D Crimes Act 1958) under the same circumstances laid out in s192B. This charge carries a maximum penalty of 3 years imprisonment.
For example, it would be an offence to falsify any of the following documents:
- Passports
- Birth certificates
- Licenses
- ABN certificates
A defendant cannot be found guilty of identity crime if the prosecution fails to prove any element of the crime. This is why it is important to have an experienced criminal lawyer assess your legal options. Depending on the circumstances and evidence available, there may be some reasonable doubt as to whether the actions of the accused amount to an offence.
Blackmail
Blackmail is an indictable offence in Victoria (s87 Crimes Act 1958). This charge carries a maximum penalty of 15 years imprisonment. To prove a charge of blackmail, the prosecution must demonstrate beyond a reasonable doubt that the accused:
- Made a demand;
- The demand was unwarranted;
- The demand was made with menaces; and
- Done so with the intention of making a gain for themselves; or
- Done so with the intention of causing loss to another.
The legislation states that the accused cannot be found guilty of blackmail if the demand is unwarranted and made with menaces but:
- It was made in the belief that there were reasonable grounds for making the demand; and
- The use of menaces is proper means for reinforcing the demand.
The Court gives no consideration to the nature of the act (or omission) demanded.
Further, a defendant cannot be found guilty of blackmail if the prosecution fails to prove any element of the crime. This is why it is important to have an experienced criminal lawyer assess your legal options. Depending on the circumstances and evidence available, there may be some reasonable doubt as to whether the actions of the accused amount to an offence.
Money Laundering
Part 1, Division 2A of the Crimes Act 1958 (Vic) legislates offences pertaining to money laundering in Victoria.
Section 194 of the Act (Vic) states that it is an indictable offence to deal with the proceeds of crime:
- Knowing that it is proceeds of crime and intending to conceal that it is proceeds of crime (maximum penalty of 20 years imprisonment);
- Simply knowing that it is proceeds of crime (maximum penalty of 15 years imprisonment);
- Being reckless as to whether or not it is proceeds of crime (maximum penalty of 10 years imprisonment);
- Being negligent as to whether or not it is proceeds of crime (maximum penalty of 5 years imprisonment).
Further, section 195 of the Act (Vic) criminalises dealing with property suspected of being proceeds of crime. This summary charge carries a maximum penalty of 2 years imprisonment. To prove the offence, the prosecution must demonstrate beyond a reasonable doubt:
- That the accused dealt with the property; and
- There are reasonable grounds to suspect the property was proceeds of crime.
A defendant cannot be found guilty of dealing with the proceeds of crime if the prosecution fails to prove any element of the offence. This is why it is important to have an experienced criminal lawyer assess your legal options. Depending on the circumstances and evidence available, there may be some reasonable doubt as to whether the actions of the accused amount to an offence.
Centrelink Fraud
Centrelink fraud is nationally criminalised under various sections of the Criminal Code Act 1995 (Cth).
Under section 134.2 of the Act (Cth), it is an offence to obtain a financial advantage by the deception of a Commonwealth entity (i.e. Centrelink). This charge carries a maximum penalty of 10 years imprisonment. To prove the offence, the prosecution must demonstrate beyond a reasonable doubt that the accused:
- Obtained financial advantage from a Commonwealth entity (e.g. Centrelink);
- Engaged in deception; and
- Knew they were acting dishonestly.
Another similar but lesser charge is legislated under s135.2 of the Act (Cth). It also pertains to obtaining a financial advantage, but only carries a maximum penalty of 12 months imprisonment. To prove this lesser offence, the prosecution must demonstrate beyond a reasonable doubt that the accused:
- Engaged in conduct;
- As a result of the conduct, obtained financial advantage for themselves from a Commonwealth entity (i.e. Centrelink); and
- Knew or believed that they were not eligible to receive the financial advantage.
Just because a person has been overpaid does not necessarily mean that Centrelink will choose to pursue a criminal prosecution. Centrelink fraud is a complex area of criminal law and many factors must be taken into consideration before a decision to criminally prosecute is made. The amount overpaid and the circumstances surrounding the overpayment are two considerable factors assessed by Centrelink.
Also, note that the accused will be given the opportunity to participate in a taped interview with Centrelink before a matter is referred to the Commonwealth Director of Prosecutions.
For more information about the procedure in cases regarding Centrelink fraud, please see below “The Court Procedure for Fraud Charges in Victoria”.
Other Offences Related to Fraud
Numerous other indictable offences related to fraud are legislated under the Crimes Act 1958 (Vic). These include but are not limited to:
- False statements by company directors etc. (s85): an indictable offence that carries a maximum sentence of 10 years imprisonment.
- Suppression etc. of document (s86): an indictable offence that carries a maximum sentence of 10 years imprisonment.
- Threats to destroy or damage property (s198): an indictable offence that carries a maximum sentence of 5 years imprisonment.
- Destruction of evidence (s254): an indictable offence that carries a maximum sentence of 5 years imprisonment.
Further, some summary offences related fraud in Victoria are legislated under the Summary Offences Act 1966 (Vic). These include but are not limited not:
- Unexplained possession of personal property reasonably suspected to be stolen (s26): carries a maximum sentence of 1 years imprisonment.
- Obtaining goods etc. by valueless cheque (s37): carries a maximum sentence of 1 years imprisonment or 25 penalty units.
- Taking or using vehicle without consent of owner etc (s38): carries a maximum sentence of 3 months imprisonment or 15 penalty units.
In Victoria, the value of one penalty unit is around $165.
The Court Procedure for Fraud Charges in Victoria
If you have been charged or are under investigation for potentially committing fraud, it is important to understand your legal rights and options. This area of law is highly complex and there are many things you must consider before giving an interview or attending court.
Our specialist team at Sher Criminal Lawyers is extensively experienced in all kinds of fraud matters and can advise and represent you in the Magistrates Court, the County Court or in a Centrelink interview. If you need help, please contact us immediately. One of our experienced criminal lawyers will expertly guide your fraud case through every stage of proceedings, from the first interview to the finalisation of the matter.
Just because a person has been overpaid does not necessarily mean that Centrelink will choose to pursue a criminal prosecution. People frequently fail to:
- Correctly declare their income to Centrelink; and/or
- Update Centrelink about changes that might affect their payment.
In many cases, Centrelink chooses to raise a debt. This means that you must pay back the amount that you have been overpaid. Centrelink will notify you of a debt by mail or myGov message. You will have 28 days to pay the debt, set up a payment arrangement or dispute the debt. If you fail to start repaying money by the due date, Centrelink may start charging you interest, refer your debt to a collection agent or issue a Departure Prohibition Order (preventing you from leaving Australia until the debt is paid).
However, if Centrelink believes that you have committed fraud, they may choose to pursue criminal charges under the Criminal Code Act 1995 (Cth). Many factors are taken into consideration before a decision to criminally prosecute is made. The amount overpaid and the circumstances surrounding the overpayment are two considerable factors assessed by Centrelink. If you have been overpaid a substantial amount and Centrelink believes you intentionally and knowingly engaged in conduct to gain financial advantage, criminal prosecution will likely be pursued.
The accused will likely be given the opportunity to participate in a taped interview with Centrelink before a matter is referred to the Commonwealth Director of Public Prosecutions (CDPP). This interview is not compulsory, but it provides the accused with a chance to share their side of the story. It is important that you seek expert legal advice from a criminal lawyer before deciding to attend or not attend the Centrelink interview. Anything you say or admit may be used against you in court proceedings.
After the interview and investigation are completed, Centrelink will refer your matter to the CDPP if it is believed that you have acted fraudulently. The CDPP is independent of Centrelink. It is the CDDP’s role to further assess whether criminal charges should be laid. If there is a reasonable prospect of conviction and the matter is in the public interest, criminal charges will likely be laid.
If you have been charged with a summary offence related to fraud, your matter will be heard and finalised in the Magistrates Court of Victoria. Summary matters may involve several complex stages of case preparation and court procedure, including:
- Police Questioning and Interviews
- Filing of Charges
- First Mention Hearing
- Summary Case Conference
- Contest Mention
- Contested Hearing
If you plead guilty to summary charges, your matter may be heard and finalised in one day. However, if you plead not guilty, the prosecution must prove each element of the relevant offence beyond a reasonable doubt. The prosecutions failure to do so will result in you being found not guilty of that charge.
If you have been charged with an indictable offence related to fraud, your matter might start in the Magistrates Court, but it will likely be finalised in the County Court. Indictable matters may involve several complex stages of case preparation and court procedure, including:
- Police Interview
- Committal Proceedings
- Plea Hearing
- Pre-trial Disclosure
- Directions Hearing
- Arraignment
- Trial
- Sentencing Hearing
Indictable cases can be heard summarily in the Magistrates Court under certain circumstances. If a charge carries a maximum sentence of 10 or fewer years imprisonment, it can be heard summarily with the defendant’s consent and the Magistrate’s approval. It is also possible for experienced criminal lawyers to negotiate lesser fraud charges with the prosecution, which may result in the matter being heard in the Magistrates Court.
If you plead not guilty, the prosecution must prove each element of the relevant offence beyond a reasonable doubt. The prosecutions failure to do so will result in the defendants being found not guilty of that charge.
Things to Consider When Charged with Fraud in Victoria
Different fraud offences require different elements to be proven. If all of the elements for a particular offence cannot be proven by the prosecution, the accused cannot be held legally liable for committing that offence. This is why it is important to seek the help of a criminal lawyer who specialises in fraud charges. Each case is unique and needs to be assessed on its circumstances and evidence.
If you have been charged with any offence related to fraud, please contact Sher Criminal Lawyers immediately. We work alongside forensic experts and distinguished barristers to achieve the best possible outcome in fraud matters. Our expert lawyers specialise in defending fraud charges and have years of experience presenting cases before the Magistrates and County Courts of Victoria.
Things for the Accused to Consider
Our specialist team at Sher Criminal Lawyers can answer your questions and provide you with expert advice and representation in your fraud matter. We will explain your legal options to you by answering important questions such as:
- Should I cooperate with a police or Centrelink interview?
- Does the prosecution have enough evidence to prove my fraud charge?
- Do I have a valid explanation for what happened?
- Is the monetary amount a consideration in fraud cases?
- Is there a legal defence I can rely on in my matter?
- How will the circumstances of the offence affect my matter?
- What is the likely result if I plead guilty or not guilty?
- Is it possible to have my charges negotiated to a lesser offence?
Things that the Court Must Consider
If your matter is taken to Court, the Magistrate or Judge will have to consider a wide range of factors that might prove you to be guilty or not guilty. In all fraud matters, our experienced team at Sher Criminal Lawyers prepares the best possible defence case by considering factors such as:
- The reason and circumstances behind why you potentially committed an offence;
- Forensic examination of the evidence;
- Any claim of right you may have to the money or property;
- Your intent and honest beliefs at the time;
- Your specific actions in relation to the offence;
- Any other elements of the offence noted in relevant legislation.
Penalties for Fraud Charges in Victoria
The Victorian Courts take fraud charges seriously. The majority of fraud related charges are considered indictable offences. These charges are heard in the County Court, with the most serious fraud offences carrying a maximum sentence of 20 years imprisonment.
Only a few offences related to fraud are considered summary offences and heard in the Magistrates Court. Summary charges can carry a maximum penalty of 2 years imprisonment.
The specific penalty for an offence is stipulated in the relevant legislation. The value of one penalty unit in Victoria is around $165.
Common penalties in relation to fraud charges include:
- Imprisonment
- A Community Corrections Order
- A Good Behaviour Bond (Adjourned Undertaking)
- A fine
- A criminal conviction
What to Do If You Are Charged With Fraud in Victoria
If you have been charged or are under investigation for a fraud offence, please contact Sher Criminal Lawyers immediately. We are here to help you achieve the best possible outcome in your matter.
Our team of specialist lawyers is extensively experienced in fraud matters. We frequently advise and represent clients in all kinds of fraud offence cases before the Magistrates and County Courts of Victoria.
We are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.