Fraud

Fraud offences can be charged in NSW laws or Commonwealth laws, depending on the type of fraud.

For Centrelink, Medicare, or GST fraud type offences, they are prosecuted by the Commonwealth Director of Public Prosecutions despite the police laying the charges.

In state offences, a person who, by any deception or dishonesty obtains property belonging to another person, or obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud.

Money laundering and dealing with suspected proceeds of crime are distinct from the fraud offence. In NSW, Part 4AC of the Crimes Act 1900 governs these offences. Section 193A defines "deal with" broadly: it includes receiving, possessing, concealing or disposing of property, transferring it into or out of NSW, and directly or indirectly engaging in a transaction, including a gift. "Proceeds of crime" means property substantially derived or realised, directly or indirectly, from a serious offence. "Proceeds of general crime" has a separate, broader statutory definition. The charge, alleged dealing, source and value of the property, and applicable mental element must be examined separately.

These are statutory maximum penalties, not predictions of a sentence. The provisions in force at the time of the alleged conduct and the precise subsection charged need to be checked.

The prosecution must establish the elements of the particular charge. Knowledge, recklessness, an intention to conceal, and reasonable grounds for suspicion are not interchangeable. Section 193CA identifies circumstances relevant to reasonable grounds to suspect, while s 193CB addresses property represented as proceeds during a controlled operation. Under s 193F, proving the relevant criminal origin does not require proof that a particular person committed a particular predicate offence; the statutory requirements for the charged offence still apply.

The available response depends on the evidence and charge. Sections 193B(4) and 193BA(4) provide statutory defences concerning dealings to assist enforcement of a Commonwealth, State or Territory law. Section 193C(4) provides a defence where the defendant satisfies the court that they had no reasonable grounds for the suspicion described in that subsection. These provisions impose specific requirements and should not be treated as automatic exemptions.

The Judicial Commission of NSW's Sentencing Bench Book discussion of money laundering principally concerns the separate Commonwealth scheme in Division 400 of the Criminal Code Act 1995 (Cth). It explains the importance of the value of property, the relevant fault element, the person's actual role, the transactions and the circumstances of the conduct. Commonwealth provisions must not be confused with NSW Part 4AC offences or their maximum penalties. The linked bench book identifies several passages as under review, so the applicable legislation remains essential.

No particular outcome follows from the name of an offence or the maximum penalty alone. Obtain advice on the exact charge and supporting evidence before deciding how to respond.

Sources: Crimes Act 1900 (NSW), Part 4AC, including ss 193A–193F; Judicial Commission of NSW, Sentencing Bench Book — Money laundering.

In the past, we have been able to negotiate pleas for overwhelmingly strong fraud cases and have provided sound advice on defending matters. Call Austere Legal on (02) 8897 3534 for a free appraisal of your case.