Dishonestly Obtain a Financial Advantage (Centrelink Fraud)

An investigator will want to conduct an interview with you because they suspect you have committed the offence of Dishonestly Obtain a Financial Advantage and hope you will make admissions which will assist in an investigation or prosecution of the charge against you. They would have already conducted an investigation and have material they think is helpful to their case.

Our lawyers regularly attend interviews for these types of matters. It is our experience that people feel comfortable attending with someone present to represent their interests, and to ensure the investigator conduct the process in a proper and appropriate way.

Pleading Not Guilty

We have significant experience in representing people charged with Dishonestly Obtain a Financial Advantage. We assist our clients in building a defence that will show the Court they are not guilty of the offence. We are able to navigate the sophisticated and voluminous briefs of evidence that often accompany charges of this kind, and closely analyse the case prosecution has brought against you.

Pleading Guilty

If you are choosing to plead guilty to Dishonestly Obtain a Financial Advantage, we will assist you in securing the most favourable outcome in the circumstances. We will also carefully assess the brief of evidence and negotiate the summary of agreed facts to reflect your version of what happened. We will gather all relevant and useful material, such as references and reports, to persuade the court to impose a sentence that is just, fair and appropriate. Our lawyers are sure to advise you of any restitution claims prosecution may make.

Sentencing outcomes

Sentencing in the Magistrates’ Courts of Australia

Source: Sentencing Advisory Council of Victoria (SACStat), Criminal Code Act 1995 (Cth) s 135.2(1) — 481 charges across 226 cases, Magistrates’ Court, 1 July 2018 – 30 June 2023.

These figures show that although there is a significant risk of custody, most matters are resolved with community-based penalties or bonds. The sentence imposed will depend on factors such as the amount involved, the level of planning, prior history, and the strength of the plea advanced on your behalf.

Which court will the case be heard in?

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.

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 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.

Defences

• 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?

Did you lie to Centrelink?

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 –

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?

Maximum penalty for section 135.2 of the Criminal Code Act 1995

The maximum penalty for the offence of (s135.2 of the Criminal Code Act 1995) is imprisonment for 12 months.

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.

Other Important Resources

• Sentencing Advisory Council. “SACStat Higher Courts – Criminal Code Act 1995 (Cth): s 135.2(1) – obtain financial advantage from a Commonwealth entity
• VCC summaries – Commonwealth dishonesty offences: Sentencing decisions from 1 January 2016 to 31 August 2016
• Criminal Code Act 1995: Obtaining Financial Advantage (p. 155)

Case Studies

• Release and Recognisance Order for Centrelink Fraud
• Community Corrections Order for Centrelink Fraud
• Fraud Against WorkSafe
• Obtain Financial Advantage – Good Behaviour Bond
• 76 Charges of Dishonesty Offences – All Withdrawn Except 2