Dishonestly Obtain a Financial Advantage (Centrelink Fraud)

– section 135.2 of the Criminal Code Act 1995
dishonestly cause a loss

 

 

When you get money from Centrelink when you shouldn’t have.

Examples of Dishonestly Obtain a Financial Advantage (Centrelink Fraud)
  • A woman incorrectly reports her income to Centrelink and receives more money from Centrelink than she is entitled to
  • A Carer continues to receive money from Centrelink even though the person they cared for has died
What are some of the possible defences to a Dishonestly Obtain a Financial Advantage (Centrelink Fraud) charge?
  • You did not do anything to cause the Centrelink to give you more money
  • You received the extra money as a result of an error made on the part of the Centrelink
  • You did not know or believe you were not eligible to receive the money

There are other possible defences, depending on the circumstances surrounding the alleged offending. Each matter is unique and requires an individual approach and strategy.

Questions in cases like this
  • Was Centrelink responsible for giving you more money / did they make the mistake?
  • Can they prove that you did something that caused Centrelink to give you more money?

Maximum penalty and Court that deals with this charge

The maximum penalty for this offence is imprisonment for 12 months.

This offence is the sort of charge regularly heard in the Magistrates’ Court. However if the amount owed exceeds more than $100,000, then a case will be heard in the County Court.

“Did you lie to Centrelink?”
What is the legal definition of Dishonestly Obtain a Financial Advantage (Centrelink Fraud)?

Deliberately engaging in conduct resulting in obtaining a financial advantage from a Commonwealth entity for yourself or someone else. And knowing or believing that you or someone else was not entitled to the financial advantage.

Legislation

The section that covers this offence is section 135.2 of the Criminal Code Act 1995.1

Elements of the offence

The following elements must be proven in court for an accused to be found guilty of this charge:

  • The accused engaged in a conduct; and
  • The conduct resulted in the accused obtaining a financial advantage for himself or herself from another person (C); or
  • The conduct resulted in the accused obtaining a financial advantage for another person (P) from a third person (C); and
  • The accused knew or believed that he or she was not eligible to receive that financial advantage, or that the person (P) for which he or she obtained a financial advantage from another person (C) was not eligible to receive that financial advantage; and
  • The other person (C) is a Commonwealth entity.

What can you be sentenced to for this charge?

With Centrelink cases it depends on how much money is involved and for how long the money was received. In serious cases you may face imprisonment.

Sentencing in the higher courts

There were 11 charges of section 135.2(1) Obtain Financial Advantage From a Commonwealth Entity that were heard in the higher courts of Victoria from 1 July 2011 to 30 June 2016. Majority of these charges resulted in Wholly Suspended Sentence (45.4%) and Partially Suspended Sentence (36.4%). Imprisonment (9.1%) and Community Correction Order (9.1%) were also imposed.1

Please note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore all offences committed on or after 1 September 2013 will not have this available as a sentencing option.2

Questions that a Judge May Ask a Jury to Consider

A Judge presiding over this matter would ask the jury to consider two things:

  1. Did the accused obtain a financial advantage from Centrelink?
  2. If so, did the accused obtain a financial advantage dishonestly?

The Judge may assist the jury in determining the question of ‘dishonesty’ by referring them to the definition provided in R v Salvo [1980] VR 401 –

‘A claim of right does not require belief in the accused in the right to obtain the property by the deception or by the particular deception employed. It is the obtaining that the Crown must prove was done dishonestly, not the practicing of the deception’.

Ultimately, the jury must look at the surrounding circumstances to decide if the accused acted dishonestly.

“Can the Prosecution prove that the accused was dishonest?”
Other Important Resources
Case Studies

 



[1] Sentencing Advisory Council. “SACStat Higher Courts – Criminal Code Act 1995 (Cth): s 135.2(1) – obtain financial advantage from a Commonwealth entity.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_CRIMCODE_135_2_1.html (accessed March 1, 2019).
[2] Sentencing Advisory Council. “Abolished Sentencing Orders.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders (accessed March 1, 2019).