Published by Geoff Harrison | 30 September 2023
Offences relating to Centrelink Fraud are generally prosecuted under s134.2 and/or s135.1 of the Criminal Code Act 1995 (Cth), namely obtain financial advantage by deception and general dishonesty. The maximum penalties are 10 years imprisonment and 120 penalty units ($33,000): s4B(2) Crimes Act 1914 (Cth). The maximum penalty that can be imposed in the Local Court for an offence that carries 10 years imprisonment is 2 years imprisonment and/or a fine of 120 penalty units ($33,000): s4J(3) Crimes Act 1914 (Cth) where a penalty unit is currently: $275 (s4AA Crimes Act 1914 (Cth).
For Commonwealth offences, s16A applies in relation to the matters that are to be taken into account for Commonwealth Sentences. The court is also required to take into account the person's financial circumstances before imposing any monetary penalty: s16C. The court in sentencing for Commonwealth offences is also required/can take into account hardship to third parties: s16A(2)(p) and Totaan v R [2022] NSWCCA 75.
In relation to the imposition of a custodial sentence, it has been held that a custodial sentence should be imposed for social security fraud unless there are very special circumstances justifying a lesser sentence. As stated in Lexis Nexis Sentencing Law, Hunt CJ at CL in R v Purdon (CCA(NSW), 27 March 1997) adopted the following passage in R v Luu (CCA(NSW), 7 December 1984):
The courts of this State have uniformly sought to make plain to persons who abuse the system of social welfare that they must expect to face heavy penalties. The introduction into the administration of that system of overly meticulous preliminary checks before benefits are paid could result in real hardship to persons whose need for benefits is urgent and immediate. Thus it is that such susceptibility is open to abuse, which results in persons who do abuse it receiving salutary penal consequences at the hands of the courts.
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The rationale for the rule that a custodial sentence is to be imposed for social security fraud except in very special circumstances is that the offence is easy to commit but difficult to detect, it is widespread, and the introduction of more checks upon applicants for social security would cause delays in the payments of benefits and therefore hardship to those whose need is urgent. It has also been said that the rule reflects a concern for the protection of the revenue, but I would prefer to express it as a concern for the additional burden upon all taxpayers who shoulder the heavy burden of providing the funds for the social security system to operate and the even heavier burden created by the widespread abuse to it by frauds such as these. The rule is not based upon the fact that many of the frauds are perpetrated for motives of greed rather than need. Both types of fraud are widespread, They are equally difficult to detect. If the fraud is based upon a perceived need, a custodial sentence must be expected except in very special circumstances. If fraud is based on greed, the custodial sentence will be longer.
The objective seriousness of the offending will take into account not only the motive for the offending but also the amount of money involved and the period of time over which the offending occurred.
Other Sources:
Cases:
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Extracted Legislation:
Division 134 -- Obtaining property or a financial advantage by deception
134.1 Obtaining property by deception
(1) A person commits an offence if:
(a) the person, by a deception, dishonestly obtains property belonging to another with the intention of permanently depriving the other of the property; and
(b) the property belongs to a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(2) Absolute liability applies to the paragraph (1)(b) element of the offence.
Obtaining property
(3) For the purposes of this section (and for the purposes of the application of section 132.1 to this section), a person (the first person ) is taken to have obtained property if, and only if:
(a) the first person obtains ownership, possession or control of it for himself or herself or for another person; or
(b) the first person enables ownership, possession or control of it to be retained by himself or herself; or
(c) the first person induces a third person to pass ownership, possession or control of it to another person; or
(d) the first person induces a third person to enable another person to retain ownership, possession or control of it; or
(e) subsection (9) or (10) applies.
(4) The definition of obtaining in section 130.1 does not apply for the purposes of this section (or for the purposes of the application of section 132.1 to this section).
(5) For the purposes of this section, a person's obtaining of property belonging to another may be dishonest even if the person or another person is willing to pay for the property.
Intention of permanently depriving a person of property
(6) For the purposes of this section, if:
(a) a person obtains property belonging to another without meaning the other permanently to lose the thing itself; and
(b) the person's intention is to treat the thing as the person's own to dispose of regardless of the other's rights;
the person has the intention of permanently depriving the other of it.
(7) For the purposes of subsection (6), a borrowing or lending of a thing amounts to treating the thing as the borrower's or lender's own to dispose of regardless of another's rights if, and only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.
(8) For the purposes of subsection (6), if:
(a) a person has possession or control (lawfully or not) of property belonging to another; and
(b) the person parts with the property under a condition as to its return that the person may not be able to perform; and
(c) the parting is done for purposes of the person's own and without the other's authority;
the parting is taken to amount to treating the property as the person's own to dispose of regardless of the other's rights.
Money transfers
(9) For the purposes of this section (and for the purposes of the application of section 132.1 to this section), if a person (the first person ) causes an amount to be transferred from an account held by another person (the second person ) to an account held by the first person:
(a) the amount is taken to have been property that belonged to the second person; and
(b) the first person is taken to have obtained the property for himself or herself with the intention of permanently depriving the second person of the property.
(10) For the purposes of this section (and for the purposes of the application of section 132.1 to this section), if a person (the first person ) causes an amount to be transferred from an account held by another person (the second person ) to an account held by a third person:
(a) the amount is taken to have been property that belonged to the second person; and
(b) the first person is taken to have obtained the property for the third person with the intention of permanently depriving the second person of the property.
(11) For the purposes of this section (and for the purposes of the application of section 132.1 to this section), if:
(a) a credit is made to an account (the credited account ); and
(b) a debit is made to another account (the debited account ); and
(c) either:
(i) the credit results from the debit; or
(ii) the debit results from the credit;
the amount of the credit is taken to be transferred from the debited account to the credited account.
(12) For the purposes of this section (and for the purposes of the application of section 132.1 to this section), a person is taken to cause an amount to be transferred from an account if the person induces another person to transfer the amount from the account (whether or not the other person is the holder of the account).
General deficiency
(13) A person may be convicted of an offence against this section involving all or any part of a general deficiency in money even though the deficiency is made up of any number of particular sums of money that were obtained over a period of time.
(14) A person may be convicted of an offence against this section involving all or any part of a general deficiency in property other than money even though the deficiency is made up of any number of particular items of property that were obtained over a period of time.
Alternative verdicts
(15) If, in a prosecution for an offence of theft, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against this section, the trier of fact may find the defendant not guilty of the offence of theft but guilty of the offence against this section, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
(16) If, in a prosecution for an offence against this section, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence of theft, the trier of fact may find the defendant not guilty of the offence against this section but guilty of the offence of theft, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
134.2 Obtaining a financial advantage by deception
(1) A person commits an offence if:
(a) the person, by a deception, dishonestly obtains a financial advantage from another person; and
(b) the other person is a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(2) Absolute liability applies to the paragraph (1)(b) element of the offence.
134.3 Geographical jurisdiction
Section 15.4 (extended geographical jurisdiction--category D) applies to each offence against this Division.
Division 135 -- Other offences involving fraudulent conduct
135.1 General dishonesty
Obtaining a gain
(1) A person commits an offence if:
(a) the person does anything with the intention of dishonestly obtaining a gain from another person; and
(b) the other person is a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the other person was a Commonwealth entity.
Causing a loss
(3) A person commits an offence if:
(a) the person does anything with the intention of dishonestly causing a loss to another person; and
(b) the other person is a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(4) In a prosecution for an offence against subsection (3), it is not necessary to prove that the defendant knew that the other person was a Commonwealth entity.
(5) A person commits an offence if:
(a) the person dishonestly causes a loss, or dishonestly causes a risk of loss, to another person; and
(b) the first-mentioned person knows or believes that the loss will occur or that there is a substantial risk of the loss occurring; and
(c) the other person is a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(6) Absolute liability applies to the paragraph (5)(c) element of the offence.
Influencing a Commonwealth public official
(7) A person commits an offence if:
(a) the person does anything with the intention of dishonestly influencing a public official in the exercise of the official's duties as a public official; and
(b) the public official is a Commonwealth public official; and
(c) the duties are duties as a Commonwealth public official.
Penalty: Imprisonment for 10 years.
(8) In a prosecution for an offence against subsection (7), it is not necessary to prove that the defendant knew:
(a) that the official was a Commonwealth public official; or
(b) that the duties were duties as a Commonwealth public official.
135.2 Obtaining financial advantage
(1) A person commits an offence if:
(a) the person engages in conduct; and
(aa) as a result of that conduct, the person obtains a financial advantage for himself or herself from another person; and
(ab) the person knows or believes that he or she is not eligible to receive that financial advantage; and
(b) the other person is a Commonwealth entity.
Penalty: Imprisonment for 12 months.
(1A) Absolute liability applies to the paragraph (1)(b) element of the offence.
(2) A person commits an offence if:
(a) the person engages in conduct; and
(aa) as a result of that conduct, the person obtains a financial advantage for another person from a third person; and
(ab) the person knows or believes that the other person is not eligible to receive that financial advantage; and
(b) the third person is a Commonwealth entity.
Penalty: Imprisonment for 12 months.
(2A) Absolute liability applies to the paragraph (2)(b) element of the offence.
(3) For the purposes of subsection (2), a person is taken to have obtained a financial advantage for another person from a Commonwealth entity if the first-mentioned person induces the Commonwealth entity to do something that results in the other person obtaining the financial advantage.
(4) The definition of obtaining in section 130.1 does not apply to this section.
135.4 Conspiracy to defraud
Obtaining a gain
(1) A person commits an offence if:
(a) the person conspires with another person with the intention of dishonestly obtaining a gain from a third person; and
(b) the third person is a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the third person was a Commonwealth entity.
Causing a loss
(3) A person commits an offence if:
(a) the person conspires with another person with the intention of dishonestly causing a loss to a third person; and
(b) the third person is a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(4) In a prosecution for an offence against subsection (3), it is not necessary to prove that the defendant knew that the third person was a Commonwealth entity.
(5) A person commits an offence if:
(a) the person conspires with another person to dishonestly cause a loss, or to dishonestly cause a risk of loss, to a third person; and
(b) the first-mentioned person knows or believes that the loss will occur or that there is a substantial risk of the loss occurring; and
(c) the third person is a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(6) In a prosecution for an offence against subsection (5), it is not necessary to prove that the defendant knew that the third person was a Commonwealth entity.
Influencing a Commonwealth public official
(7) A person commits an offence if:
(a) the person conspires 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
(b) the public official is a Commonwealth public official; and
(c) the duties are duties as a Commonwealth public official.
Penalty: Imprisonment for 10 years.
(8) In a prosecution for an offence against subsection (7), it is not necessary to prove that the defendant knew:
(a) that the official was a Commonwealth public official; or
(b) that the duties were duties as a Commonwealth public official.
General provisions
(9) For a person to be guilty of an offence against this section:
(a) the person must have entered into an agreement with one or more other persons; and
(b) the person and at least one other party to the agreement must have intended to do the thing pursuant to the agreement; and
(c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.
(10) A person may be found guilty of an offence against this section even if:
(a) obtaining the gain, causing the loss, causing the risk of loss, or influencing the Commonwealth public official, as the case may be, is impossible; or
(b) the only other party to the agreement is a body corporate; or
(c) each other party to the agreement is a person who is not criminally responsible; or
(d) subject to subsection (11), all other parties to the agreement have been acquitted of the offence.
(11) A person cannot be found guilty of an offence against this section if:
(a) all other parties to the agreement have been acquitted of such an offence; and
(b) a finding of guilt would be inconsistent with their acquittal.
(12) A person cannot be found guilty of an offence against this section if, before the commission of an overt act pursuant to the agreement, the person:
(a) withdrew from the agreement; and
(b) took all reasonable steps to prevent the doing of the thing.
(13) A court may dismiss a charge of an offence against this section if the court thinks that the interests of justice require the court to do so.
(14) Proceedings for an offence against this section must not be commenced without the consent of the Director of Public Prosecutions. However, before the necessary consent has been given, a person may be:
(a) arrested for an offence against this section; or
(b) charged with an offence against this section; or
(c) remanded in custody or released on bail in connection with an offence against this section.
135.5 Geographical jurisdiction
Section 15.4 (extended geographical jurisdiction--category D) applies to each offence against this Division.
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