Which of the following is the most important factor when deciding how much disability income

Taken from Sentencing Guidelines Council Guideline Overarching Principles: Seriousness.

The lists below bring together the most important aggravating and mitigating features with potential application to more than one offence or class of offences. They include some factors which are integral features of certain offences; in such cases, the presence of the aggravating factor is already reflected in the penalty for the offence and cannot be used as justification for increasing the sentence further. The lists are not intended to be comprehensive and the factors are not listed in any particular order of priority. If two or more of the factors listed describe the same feature care needs to be taken to avoid “double counting”.

Aggravating factors

Factors indicating higher culpability:

offence committed whilst on bail for other offences;
failure to respond to previous sentences;
offence was racially or religiously aggravated;
offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation);
offence motivated by, or demonstrating, hostility based on the victim’s disability (or presumed disability);
previous conviction(s), particularly where a pattern of repeat offending is disclosed;
planning of an offence;
an intention to commit more serious harm than actually resulted from the offence;
offenders operating in groups or gangs;
‘professional’ offending;
commission of the offence for financial gain (where this is not inherent in the offence itself);
high level of profit from the offence;
an attempt to conceal or dispose of evidence;
failure to respond to warnings or concerns expressed by others about the offender’s behaviour;
offence committed whilst on licence;
offence motivated by hostility towards a minority group, or a member or members of it;
deliberate targeting of vulnerable victim(s);
commission of an offence while under the influence of alcohol or drugs;
use of a weapon to frighten or injure victim;
deliberate and gratuitous violence or damage to property, over and above what is needed to carry out the offence;
abuse of power;
abuse of a position of trust.

Factors indicating a more than usually serious degree of harm:

multiple victims;
an especially serious physical or psychological effect on the victim, even if unintended;
a sustained assault or repeated assaults on the same victim;
victim is particularly vulnerable;
location of the offence (for example, in an isolated place);
offence is committed against those working in the public sector or providing a service to the public;
presence of others for example, relatives, especially children or partner of the victim;
additional degradation of the victim (for example, taking photographs of a victim as part of a sexual offence);
in property offences, high value (including sentimental value) of property to the victim, or substantial consequential loss (for example, where the theft of equipment causes serious disruption to a victim’s life or business).

Mitigating factors

Factors indicating lower culpability:

a greater degree of provocation than normally expected;
mental illness or disability;
youth or age, where it affects the responsibility of the individual defendant;
the fact that the offender played only a minor role in the offence.

Offender mitigation

genuine remorse;
admissions to police in interview;
ready co-operation with authorities.

Deeming rules are used to work out income from your financial assets. We add this to your other income and apply the income test to work out your payment rate.

helps keep your payments steady instead of going up and down based on the performance of your financial assets
provides an incentive to invest, as any interest rate achieved above the deeming rates doesn’t count as income
lets you choose the best investments for your needs, not how they may affect your payment.

How we work out your deemed income

If you’re single

The first $56,400 of your financial assets has the deemed rate of 0.25% applied. Anything over $56,400 is deemed to earn 2.25%.

If you’re a member of a couple and at least one of you get a pension

The first $93,600 of your combined financial assets has the deemed rate of 0.25% applied. Anything over $93,600 is deemed to earn 2.25%.

If you’re a member of a couple and neither of you get a pension

The first $46,800 of each of your own and your share of joint financial assets has a deemed income of 0.25% per year. Anything over $46,800 is deemed to earn 2.25%.

If you earn more than the deemed rates

If your investment return is higher than the deemed rates, the extra amount doesn’t count as your income.

Where the deeming rates come from

The Minister for Social Services sets these rates. They reflect expert advice about what the markets are doing.

Getting a deeming exemption

You may be able to get a deeming exemption in some cases.

If this happens, how much you actually earn from the investment is the income amount that counts for the income test. This actual income could be $0.

A deeming exemption won’t change the value of the investment for the assets test.

What may be exempt

Deeming exemptions may apply to:

What won’t be exempt

You can’t get a deeming exemption just because an investment performs poorly. This includes:

shares with negative returns
companies or funds having short term problems.

How to apply

You will need to talk to one of our Financial Information Service Officers and complete an application.

Who decides

The Minister for Social Services is the only person who can grant a deeming exemption.

If they grant you a deeming exemption, they’ll decide the start date. In most cases this is either:

the date when you applied for the deeming exemption
the date when an insolvency practitioner starts.

The exemption keeps going until the reason for it no longer exists.

How they decide

The Minister considers a range of factors for each type of investment.

Failed investments

The Minister may consider the following factors in deciding whether to apply deeming to failed investments:

if it would be unfair to apply the deeming rules
the investment is not providing a return
your access to any of the investment capital.

The Minister may also consider the reason why there are no returns and why you can’t get the capital back, when either:

there’s a legal obstacle from a third party or someone other than the fund manager
conditions that you couldn’t have foreseen and that weren’t in the product disclosure statement or prospectus.

If there’s widespread impact from an investment company collapsing, there may be a deeming exemption for all investors. In this case you don’t need to apply for a deeming exemption. Just contact us to check if the group one covers you.

Superannuation

The Minister will also consider why you can’t access your superannuation money if any of the following controls apply:

the rules of the superannuation fund
a court order
superannuation regulations.

You can’t get an exemption if you have access to any part of your super when you apply.

An exemption will also affect how we value the investment for the assets test.

Church and charitable institution development funds

Until 1 January 2010 many of these funds had a deeming exemption. Normal deeming rules now apply.

Your investment in one of these funds may still be exempt if you invested before 2010. The exemption is only for amounts you invested before 2010 and anything you put into the fund since then isn’t exempt.

Evidence we need from you

If you apply for a deeming exemption, you need to give us proof of the reason for it.

Failed loan or investment

When you have a failed loan or investment, we may ask you to provide any of the following documents:

a report from the appointed insolvency practitioner
a letter from your lawyer with details of the legal action you’ve taken to get your money back
court documents.

Superannuation

If you apply for a deeming exemption related to superannuation, you’ll need to provide us with all of the following:

the latest statement from the super fund. If you’ve had a birthday since then, you need to get a new statement
documents showing the investment’s current value and status, including the preserved amount, restricted non-preserved amount and unrestricted non-preserved amount.

If in doubt, check with your fund to see if you have access to any of the investment now. If so, you can’t get an exemption.