White Collar Crime
White collar criminal investigations are now more common than ever
ASIC and other regulatory bodies investigate individuals, businesses and companies to determine whether various laws have been breached. If you become subject to investigation, it is important that you understand your rights and obligations throughout the potentially lengthy process. Following investigations, serious criminal charges relating to dishonesty and negligence may arise.
The term ‘white-Collar crime’ is an umbrella term which encompasses a broad category of financially related criminal offences (whether criminal or civil in nature) allegedly committed by professionals. White-collar crime can include:
- Fraud (including cyber and insurance fraud)
- Theft (including misappropriation of funds)
- Tax Evasion
- Misappropriation or Theft of Assets
- Obtaining Financial Advantage by Deception
- Breach of Directors’ Duties
- Money Laundering
- Failing to Comply with Accounting Standards
- Making False Records or Concealing Documents
- Theft by an Employee (including IT fraud)
- Using a Ponzi Scheme – i.e. a fraudulent investment scheme that involves the payment of purported returns to existing investors from funds contributed by new investors, rather than from profit earned through legitimate investment activities.
It is claimed that white-collar crimes are more financially damaging than all other crimes combined. Over time these offences have become more complex and carry much higher maximum penalties under State and Commonwealth legislation. These offences often permeate the upper echelons of society so it is important that you have expert legal representation when dealing with any such allegations.
Fraud is a highly complex area of law, and is generally defined as wrongful, deceitful or dishonest behaviour for personal or financial gain, such as obtaining, property, goods and services that do not belong to you and using the obtained materials for your own advantage or the advantage of third parties, to the detriment of another party. Fraud is often categorised by the type of act committed, or by the industry in which it occurs.
Fraud often occurs during a transaction.
Previous offences involving fraud might be taken into consideration in sentencing, and can provide aggravating factors when considering the sentence for an offence involving fraud. The maximum penalty for fraud in Queensland is 12 years imprisonment, however the Federal Sentencing Guidelines recommend sentences of between 3 and 5 years.
Bribery and corruption offences are often prosecuted in concert with fraud offences. In some cases, a charge of foreign bribery includes foreign government officials or their family members as victims of the bribe. A charge of employment bribery includes the organisation that is defrauded of its employees’ services, and the employees themselves.
The offence of fraud can also be charged as an alternative to other offences involving dishonesty, such as theft.
The main categories of fraud in Australia include:
- Misappropriation of Bank Account Funds
- Theft of Cash (from a safe or till)
- Taxation Fraud (tax evasion)
- Card Fraud
- Organised Investment Fraud
- Serious Investment Fraud
- Superannuation Fraud
- Identity Fraud
Criminal fraud in Queensland is prohibited under section 408C of the Criminal Code 1899 (Qld) (“the Criminal Code”). The common element of criminal fraud is dishonesty. The penalty for criminal fraud is also more significant if the value of the property is at least $100,000.
A person convicted of fraud may be liable to imprisonment for a term not exceeding 5 years, or a fine not exceeding 1,200 penalty units, or both. If the value of the property is $100 000 or more the maximum penalty is 12 years’ imprisonment.
Corporate crime, or business crime, refers to crimes committed by a company, a business entity, or a person acting on behalf of a company or a business entity, and may encompass a number of different types of illegal activities.
Generally, business crimes tend to involve a director or other officer of a company breaching their fiduciary duty by committing an act that has an adverse effect on the company’s shareholders, or the company itself, for their own personal benefit. However, business crime may also involve an array of other scenarios, such as a company being established purely to conceal illegitimate activity.
The most common types of corporate crime are:
- Environmental crime;
- Fraud and corruption;
- Money laundering;
- Bribery, kickbacks and extortion;
- Tax evasion and tax frauds; and
- Antitrust or price-fixing cartels, bid rigging etc.
Business crimes often overlaps with white-collar crime due to the similar nature of these two categories of crimes.
Perpetrators of corporate crimes can face both criminal prosecution, and sanctions under the Australian Securities and Investment Commission Act 2001 (Cth). The penalties which apply under section 408C of the Criminal Code are more severe where the perpetrator is the director of a company, and the crime is committed against the company, or where the victim is the perpetrator’s employee.
Defending Against Fraud & White-Collar Criminal Charges
Fraud and white-collar related charges are very serious. However, there are a number of defences available for charge of fraud and white-collar crimes in Queensland. Fraud and white-collar crimes are very broad categories of crimes, and accordingly, the defences available will vary depending on the specific act committed.
Some defences that might apply depending on the circumstances of an individual case, and are commonly used in Brisbane, Toowoomba and Ipswich courts are:
- Duress (threat of violence)
- Honest Claim of Right
- Reasonable Mistake
The most common defence for fraud and white-collar crimes are honest claim of right and a mistake of fact. The other big question is whether the prosecution can prove the fraud beyond a reasonable doubt. If you need advice on a related charge, get in touch with us ASAP.
We are criminal law experts with extensive experience in investigations and trials. We will be with you from start to finish and aren’t afraid to stand up and ensure your rights are protected.