ASIC Investigations and Sentencing Outcomes

ASIC administers a number of different pieces of legislation. Where conduct is generally alleged however, to amount to fraudulent conduct the Criminal Code 1899 (Qld) and other local jurisdiction criminal laws may be involved.

Fraud is an offence under the Queensland Criminal Code that involves a person dishonestly:

  • Applying property belonging to another (which may be in their possession subject to a trust or condition) to their own use or to another person’s use; or
  • Obtaining property from any person;
  • Inducing any person to deliver property to another;
  • Gaining a benefit or advantage (including non-monetary) for any person;
  • Causing a detriment (including non-monetary) to any person;
  • Inducing any person to do something that the person is lawfully allowed to abstain from doing;
  • Inducing any person to abstain from doing something that they are lawfully allowed to do; or
  • Intentionally makes off without paying for a lawfully provided service (which requires on-the-spot payment) or lawfully supplied property.

In circumstances where the person is a director or officer of a corporation and the victim is the corporation, the offender is an employee or employer of the victim, or the property came into the possession and control of the person as a result of a trust, direction or condition the offending is aggravated and a maximum sentence of 14 years may be imposed.

Moreover, where the property value dishonestly obtained is $100,000 or more or the person carries on the business of committing fraud, the offending is further aggravated and a maximum penalty of 20 years imprisonment may be imposed.

A recent example of an ASIC investigation which resulted in Queensland fraud offences arose when a former Townsville financial adviser who was the subject of an ASIC investigation, was sentenced to eight years’ imprisonment with a non-parole period of two years and eight months.

He pleaded guilty to eleven counts of dishonestly applying to his own use property belonging to another under various provisions of section 408C of the Queensland Criminal Code, being offences of fraud.

In particular, he had accessed and transferred approximately $1.1 million from his clients’ superannuation, pension and personal savings accounts between 2006 and 2017.

In considering the appropriate penalty, Her Honour Judge Dick described the offending as significantly impacting the victims and diminishing public trust in the financial services industry.

In circumstances where ASIC investigators have made contact with you or your company, it is important that you receive advice from the earliest opportunity.  The consequences for you personally and for your business generally may be significant, as exemplified by this recent matter.

If you would like further information about the ASIC investigation process, see our ASIC page and helpful fact sheet about ASIC compelled interviews.

This article is authored by Emma Higgins