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  • Fraud Offences in Queensland (QLD)

    Section 408C of the Queensland Criminal Code 1899, defines all actions relating to Fraud. It also prohibits all activities, including related offences and any attempts or intentions to commit such acts.

    Under the section, a fraud offence occurs where;

    • The court finds that the accused person dishonestly;
    • Illegally obtains or applies another's property for their use,
    • Induces a person to surrender the property,
    • Gains a benefit of advantage, gains or otherwise for a person,
    • Blackmails the person to commit an act that they are prohibited from doing under the Law
    • Blackmails the person to abstain from a role they are lawfully entitled to,
    • It makes off without paying for a good or service rendered. In this case, the offender took off without paying or attempted to avoid payment where the payment was required.

    If you are convicted for a fraud offence in the state of Queensland, it will show up on a criminal record check in QLD.

    The offence is disclosed in accordance with QLD’s spent convictions legislation.

    Which Queensland Court hears Fraud related offences?

    Fraud offences are handled in a District Court as an indictable offence. The District Court judge or jury will impose up to the maximum penalties on a guilty person.

    However, some cases of Fraud are considered trivial or lesser offences and are handled in a Magistrate Court. Fraud offences are treated summarily when a Magistrate hears the case.

    What penalties does the Queensland Law stipulate for Fraud offences?

    When imposing penalties for a fraud offence, the court will consider the circumstances around the conviction, including the presence of aggravating factors. Generally, a Fraud offence incurs penalties between (5 and 10 years imprisonment term).

    However, the court may impose higher penalties depending on the presence of other peculiar factors.

    Corporate Fraud offences in Queensland

    A senior officer, director of a corporation, or business owner can also be found guilty of fraud offences against their corporations. Also, some fraud offences against employees may be considered corporate fraud offences.

    A corporate offence occurs if the offender claims/illegally uses/takes a property meant for a different/specified purpose. This property can also be other properties of the company/organization that they had access to by their position/role in the company.

    If the court finds you guilty of corporate fraud offences, it will impose up to the prescribed maximum penalties depending on the circumstances.

    The court will impose up to a 14-year imprisonment term if the;

    • The victim of the offence was an employee in the corporation
    • An employee against the company committed the offence

    Fraud offences by Value of property stolen

    The court can also impose penalties for a fraud offence depending on what the offender appropriated. Some Jury or Judge will consider the crime a severe one if the offender obtained properties above $100 000 dishonestly. Some judges believe it to be an indication of the "hardened" nature of the offender.

    Where;

    Property, proceed, or item obtained from t\he act of Dishonesty (fraud) is valued between $30,000 and $100,000, the Act prescribes penalties up to 14-years imprisonment.

    If the property's Value, or proceeds, exceeds $100,000, the Act stipulates penalties of up to 20 years imprisonment.

    Furthermore, the court may also impose this maximum offence if the offender re-commits such crimes (repeat offender).

    No Fraud offence circumstances

    The court will not find you guilty of a fraud offence under any of these circumstances;

    The person who obtains/uses a property (not theirs) does not know to whom the property belongs. And the person believed that it would be almost impossible to discover the owner through any practical means.

    However, this does not stand if the property came to their control as a trustee or personal representative.

    Fraud offences of dealing with Identification documents

    Section 408D of the Act prohibits all illegal and dishonest actions involving an identification document. A person will be guilty of any violations of this regard, including;

    • Facilitating the process,
    • Dealing with such items,
    • Using to defraud,
    • Possessing it with the intent to defraud,
    • Keeping any of the equipment that makes the IDs

    Penalties for fraud offences requiring Identification Documents (IDs)

    For all fraud offences involving the use or dealing with an ID, the court imposes a maximum sentence of 5 years imprisonment term.

    Possessing any of the equipment used to commit, assist or facilitate the crime carries a maximum penalty of 5 years imprisonment.

    Factors relevant to the offences with an ID document

    When hearing matters of such fraud offences, it is irrelevant to the court if the impersonated person;

    • Is alive or dead, Or,
    • Exists or invented (formed),
    • Consented or not to the dealings with their IDs.

    While issuing the sentencing, the court may order the impersonated person/entity to provide;

    • Their names,
    • The offence,
    • Other things the court considers relevant for their benefit.

    Anyone can prosecute the matter of an identity document fraud, including;

    • The court
    • The impersonated person,
    • The prosecutor

    Fraud offences with a Computer

    It is an offence under the Act (s 408E) to use, handle or perform other operations with a restricted computer without the controller’s consent.

    It is mainly handled as a summary offence before the magistrate court and carries a penalty of up to 2 years imprisonment. However, it may be treated as an indictable offence before a District Court on serious indictments or crimes.

    Related offences of Fraud with a computer

    Depending on the intent or the offence, the court may issue severer punishments for fraud offences with a computer. Some of them include;

    Intent to cause damage

    If the court finds that the accused "tampered" with the digital machine to cause a considerable detriment to the community or organization, it can impose penalties up to a 5-years imprisonment term.

    Also, if the offender intended to appropriate some gains, the court can sentence them up to 5 years imprisonment.

    Causing severe detriments with computer fraud

    If the damage or detriment a person causes is over $5000, or the intention to commit a serious offence, the offender can get up to a 10-years imprisonment term.


    A defence for this purpose can be;

    There was an authorisation or permission to sue the restricted device, especially if it is subject to the Law. The offender must prove that they had specific justifiable reasons to use the property.

    • Restricted Computer

    For this matter, a restricted computer includes;

    • A device or algorithm that requires keys, data or electronic instructions to gain access to use it.
    • The Computer has a controller who restricts or takes steps to make the Computer a private one,
    • Keeps or protect the Computer for use only for certain people;

    What are the essential terms in deciding a fraud offence?

    When considering whether a charge qualifies as being treated as a fraud offence, the court will consider some of the following factors;


    Property

    For fraud offences, a property includes; credits, possessions, services, benefits of a gain or anything that gives the right to incur a debt or release obligations. It can be money, land properties, moveable goods and other items the Act defines as "capable of being stolen”.

    A person is still guilty of a fraud offence under the Act even if they;

    • Are you willing to pay for the property, or,
    • Intend to restore the property afterwards or make repayments/restitutions to satisfy the original obligations
    • The owner or other person consents to the Act or make any omission
    • Another person causes the mistake.

    Owner

    The Law defines a property owner as a person/group or joint owner of that property. It also includes person(s) who have legal and equitable rights, interest or claim over a property, or,

    Any person who was immediately before the offender's control had legal rights to the property.


    Obtain

    To obtain, claim or appropriate a property means to gain, get, receive or acquire a property in any way.

    Also, if the accused person induces a person or any of the owner or legal authority on a property to pass such property, it does not matter that;

    • The owner intends to give ownership of the property, Or
    • if the offender was the beneficiary of such transfer.

    Dealing

    Dealing with a property or an ID means being passively or actively involved in the; supply, use, possession, or maintenance of such an item.


    Identity information

    It consists of all personal and legal information of an entity. Illegally obtained IDs are used to commit, facilitate, induce or assist fraudulent offences with the holder's data.

    What does the prosecutor need to prove in court?

    When you accuse a person in court for fraud offences, there are certain things the prosecutor must prove. Some of the things the prosecutor must prove (usually with evidence) before a judge are;

    • The property they obtained belonged to another person, or
    • The accused dealt illegally with a property under their trust, direction or care.

    The prosecution must also follow earlier proof with arguments that the accused (defendant) did any of the following;

    1. obtained the property from a person (victim) dishonestly, or
    2. induced a person to deliver the property to another beneficiary,
    3. The defendant gained a benefit or advantage, monetary or otherwise, for any person.
    4. The defendant caused a detriment, financial or otherwise, to any person.
    5. The defendant induced any person to do any act that was lawfully entitled to abstain from doing.
    6. The defendant induced any person to refrain from doing an action that was legally allowed to do.
    7. The defendant "went off":
    • Knowing that payments on-the-spot was required or expected for the property lawfully supplied or returned or other services legally received;
    • Without paying; and
    • With intent to avoid charges.

    The proof of Dishonesty in a Fraud Matter

    From a reference to an earlier case; The Judge stipulated that the person must have acted in a way that was dishonest by ordinary standards. The person must also be aware that their actions were fraudulent by any of these common standards.

    Also, the case of R v Glenister [1980] 2 NSWLR 597 held that fraudulent activity could mean dishonest actions.

    Aggravated circumstance for a Fraud offence

    Under the Penalties and Sentencing Act of 1992 (s161Q), various factors or circumstances can lead to a fraud offence being “aggravated”. If the court finds the circumstances of aggravation for a crime, it may impose penalties more severe than the basic.

    Aggravated circumstances for a Fraud offence include;

    1. The victim was a public officer serving in any of these capacities;
    • An emergency service worker,
    • Correctional officer, Judicial officer,
    • Council law,
    • Teacher/Educator,
    • Community worker,
    • And any other public officer.
    1. The offender attempted or threatened to use a weapon,
    2. The offence involved the use of violence or threats on the victim,
    3. The offender used an explosive or other chemical or biological agents,
    4. The crime was committed by a group or people in a large company,
    5. The crime involved wanton harm to the victim,
    6. The offender has a previous criminal conviction for such actions in the past,
    7. The offender forced narcotics, drugs, or other intoxicating substances on the victim,
    8. The offence occurred in the view of a child or persons under 18,
    9. There was substantial harm to the victim from the attack by the offender,
    10. The crime occurred without regard for the safety of the public,
    11. The offence is motivated by hatred, discrimination, pogroms or prejudice against a group,
    12. The offence is for financial gain,
    13. The victim was a person over the age of 60 years.

    Possible defences to a fraud offence

    If you are charged with a fraud offence or any other stealing offence in QLD, it is best to contact the services of an experienced lawyer. Some of the benefits of getting a lawyer includes;

    • For sound legal advice,
    • Representation and arguing various forms of defences (if you are guilty).

    Depending on how convincing or compelling your argument is, the Judge may grant you lesser sentencing or even acquit you of the charge.

    The possible defences for a Fraud offence include;

    • You had consent to use or claim the property
    • Insanity or mental instability
    • The actions resulted from a civil dispute
    • The argument that you had the honest claim of rights
    • Committed the offence under duress
    • The item taken does not count as a "property" by law.

    Do Fraud offences show up on a national police history check in Queensland?

    Where an individual is convicted in a QLD court for the offence of fraud, the offence will show up as a disclosable court outcome (DCO) on their nationally coordinated criminal history check certificate.

    Individuals can obtain a criminal background check online via the Australian National Character Check (ANCC®) website.

    Sources

    Section 408 of the Criminal Code Act 1899 (QLD) - https://www.legislation.qld.gov.au/view/pdf/inforce/current/act-1899-009

    Section 161Q of the Penalties and Sentencing Act 1992 - https://www.legislation.qld.gov.au/view/html/inforce/current/act-1992-048#sec.161Q

    R v Glenister [1980] 2 NSWLR 597 - https://nswlr.com.au/view/1980-2-NSWLR-597

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