Centrelink fraud is an increasingly common charge brought before the Queensland courts. In large part, the increase in Centrelink fraud cases is due to better data matching with the ATO.
A person accused of Centrelink fraud who pleads guilty or is found guilty faces the very real prospect of a prison sentence. The main concern of the courts when sentencing an offender is to deter that person from committing the crime again and, more importantly, to deter others in the community who might be tempted to commit similar acts of fraud against Centrelink.
Article 135.2 of the Penal Code Act 1995 is the section under which people are processed and which says the following;
135.2 Obtaining financial advantage
(1) A person is guilty of a crime if:
(a) the person engages in conduct; Y
(aa) as a result of that conduct, the person obtains a financial advantage for himself or herself from another person; Y
(ab) the person knows or believes that he or she is not eligible to receive that financial advantage; Y
(b) the other person is a Commonwealth entity.
Penalty: 12 month prison.
In our experience, once the total amount of the Centrelink fraud exceeds $10,000, the possibility of a prison sentence is quite high, and once the amount exceeds $20,000, the possibility is almost certain.
However, this does not mean that there are no ways to structure a sentence so that a person does not have to spend time in jail. In general, there are two main ways to avoid having to serve actual jail time serving an Intensive Corrections Order (“ICO”) or a combination of probation and good behavior.
Intensive Corrections Order
An ICO is known as an incarceration in the community. In Queensland, an ICO would generally mean that, up to a maximum of one per year, one person must;
1. Report at least twice a week to a corrective services officer
2. Receive visits from a corrective services officer if necessary
3. Attend counseling or other programs if directed
4. Complete up to 12 hours of community service each week
5. You must not leave or stay outside of Queensland without permission
As you can see, the requirements of an ICO are quite strict and it is certainly not an easy option, but of course it is much better than spending time in jail.
ICOs are generally the most common sentence used by the court instead of sending a person to jail.
The other possibility of avoiding an actual jail term is a combination of probation and good behavior.
Probation/good behavior
This sentence is usually used when the amount of fraud is not that serious or a person is unable to conduct an ICO.
The sentence would require a person to be placed on probation, which would require him to do so;
1. Report to a probation officer as directed
2. Receive visits from a corrective services officer if necessary
3. Attend programs or counseling as directed.
4. Do not leave or stay outside of Queensland without permission
They would also have to be on good behavior for a period not to exceed 5 years, which means the person must not commit any other criminal acts, otherwise they face the prospect of further punishment.
In determining the appropriate sentence, the court will look at the factors listed in the Offenses Act, including;
the circumstances of the crime
if the person has a criminal record
the person’s personal circumstances
any contrition shown
whether the person pleaded guilty and how soon they pleaded guilty
how much of the Centrelink debt the person has paid
the need to ensure that the person is adequately punished for the crime
the need for deterrence
the effect any sentence would have on any of the person’s family
the degree to which the person has cooperated with law enforcement
the character, age, means and physical or mental state of the person
How to balance all the different factors is obviously the most important job the Magistrate has and it is important to have a capable lawyer to represent you.
The sentence is recorded
The court is required to record a conviction unless it makes an order under section 19B of the crime law. A conviction would not be recorded if the sentence is a discharge and may or may not be recorded if the sentence is an order for good behavior with or without parole. If a person is sentenced to an ICO or prison, then a conviction must be recorded.
If you are accused of Centrelink fraud, then getting good legal advice and representation is essential. This is not the kind of matter that should go to court without representation.