Fraud is a serious criminal offence in Queensland carrying a maximum penalty of 12 years’ imprisonment in some instances. The offence is created by section 408C of the Criminal Code Act 1899 which says:
“(1) A person who dishonestly —
- applies to his or her own use or to the use of any person —
- property belonging to another; or
- property belonging to the person, or which is in the person’s possession, either solely or jointly with another person, subject to a trust, direction or condition or on account of any other person; or
- obtains property from any person; or
- induces any person to deliver property to any person; or
- gains a benefit or advantage, pecuniary or otherwise, for any person; or
- causes a detriment, pecuniary or otherwise, to any person; or
- induces any person to do any act which the person is lawfully entitled to abstain from doing; or
- induces any person to abstain from doing any act which that person is lawfully entitled to do; or
- makes off, knowing that payment on the spot is required or expected for any property lawfully supplied or returned or for any service lawfully provided, without having paid and with intent to avoid payment;
commits the crime of fraud.”
“Property” for the purpose of section 408C includes money and extends to non-physical things such as credit arrangements or a release of an obligation.
There are two types of fraud which can be committed when a person engages in dishonest conduct of the kind referred to above: fraud simpliciter, and aggravated fraud.
If you have been charged with fraud, or if you are aware that you are being investigated by the police or another agency for fraud, it is important that you obtain legal advice, and likely representation, as a matter of urgency.
Fraud simpliciter, or simply “fraud” is committed when a person engages in one or more of the types of conduct listed above without a circumstance of aggravation (which would result in an offence of aggravated fraud). It is punishable by a maximum of 5 years’ imprisonment.
Likely Penalty for Fraud
The penalty which a court imposes for a fraud offence will be influenced by a number of factors, most particularly, the offender’s prior criminal history (if any), the sophistication of the fraud and the sum of money or quantum of other property defrauded.
A first offender whose fraud is small and not connected to any sophisticated dishonesty, might receive a fine or a community based order, such as a community service or probation order. Even in less serious cases, convictions are normally recorded for fraud offences.
For repeat offenders, in particular people who repeatedly engage in the same sophisticated scheme to defraud others, sentences of imprisonment are not uncommon, often with a period of time spent in “actual custody” within a prison.
If you committed fraud to support an addiction, such as gambling, or for other reasons which were not based on greed, it might be possible to argue that a lesser penalty should be imposed upon you.
If you have been convicted of fraud and are facing sentence, a well-planned-and-argued plea in mitigation can have a marked impact on the outcome you receive. Armstrong Legal’s criminal lawyers are experienced at representing clients at plea and sentence hearings and we stand ready to assist you, or a family, member who might be facing such an occasion.
Aggravated fraud is committed in circumstances where a director, trustee or employee commits fraud against the corporation which they are a director of, the trust they are trustee of, or the business they are employed by. The crime of fraud is also, automatically, aggravated when the value of the property defrauded exceeds $30,000. The maximum penalty for aggravated fraud is 12 years imprisonment.
Likely Penalty for Aggravated Fraud
The penalty which a court imposes for an aggravated fraud offence will be influenced by a number of factors, most particularly, the offender’s prior criminal history (if any), the sophistication of the fraud and the sum of money or quantum of other property defrauded.
If you are convicted of an offence of aggravated fraud, as a starting point, it is reasonable to expect that you will be sentenced to a term of imprisonment unless some exceptional circumstances of your case warrant a lesser penalty. This is true even if you are a first offender.
For repeat offenders, in particular people who repeatedly engage in the same sophisticated scheme to defraud others, a long custodial sentence can be expected.
If you committed aggravated fraud to support an addiction, such as gambling, or for other reasons which were not based on greed, it might be possible to argue that a lesser penalty should be imposed upon you.
What Must be Proved
In order to convict you of fraud, or aggravated fraud, it must be proved that:
- you engaged in one of the actions set out in section 408C(1), and
- you did so dishonestly
To prove that you did something dishonestly, the prosecution must establish that your conduct was dishonest by the standards of ordinary and reasonable people. It does not necessarily matter if you considered your actions to be dishonest, so long as an ordinary and reasonable person would objectively consider that they were.
Possible Defences to a Fraud Charge
In addition to the “ordinary defences” which apply to most criminal matters, namely that you were not the person who committed the offence or you did not engage in the conduct which gave rise to the offence, it is also a defence to a charge of fraud, or aggravated fraud, if you had a genuine and honest claim of right over the property which you have been charged with defrauding.
It might also be a defence to a charge of fraud, or aggravated fraud, if you can establish that your conduct was not, in fact, dishonest. An example of such a case might be where a person tricks a thief into returning stolen property to its rightful owner.
Which Court Will Hear My Matter?
A charge of fraud, whether fraud simpliciter or aggravated fraud, will be heard and determined in the District Court.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.