Fraud Offences

The main fraud related offence is ‘dishonestly obtaining financial advantage or causing financial disadvantage, by deception’ outlined in section 192E of the Crimes Act 1900. This occurs when you engage in conduct that is considered dishonest and deceptive, in order to obtain a financial advantage or cause a financial disadvantage. 

An example is posting something for sale online, receiving the money for it and then never sending it to the purchaser. This charge does not only include money, but also property. 

‘Deception’ is defined as any deception by words or other conduct, as to fact or as to law, including a deception as to the intentions of the person using the deception or any other person. It also includes conduct by a person that causes a computer, a machine, or any electronic device to make a response that the person is not authorised to cause it to make. 

Whether you did something dishonestly has its standard meaning. This will be judged objectively according to the standards of ‘ordinary people’ which necessarily involves community-based moral judgements. 

A person ‘obtains property’ if:

  • The person obtains ownership, possession, or control of the property for themselves or for another person, or

  • The person enables ownership, possession, or control of the property to be retained by himself or herself or by another person, or

  • The person induces a third person to do something that results in the person or another person obtaining or retaining ownership, possession, or control of the property.

Actions related to obtaining property may be dishonest, even where the person is willing to pay for the property.

A person causes a financial disadvantage where they do so to another person or induce a third person to do something that results in another person suffering a financial disadvantage.

It is immaterial whether the financial advantage or disadvantage is permanent or temporary.

What the prosecution needs to prove

There are many different fraud charges in NSW and the elements differ based on the specific charge.

However, the elements that the prosecution will be required to prove beyond reasonable doubt in relation to section 192E are that:

  • You, by deception

  • Obtained property belonging to another, or

  • Obtained a financial advantage or caused a financial disadvantage, and

  • You did so dishonestly, and 

  • You knew the actions were dishonest.

Whilst the obtaining of financial advantage or the causing of the financial disadvantage is required to be the result of the accused’s deception, it is not necessary to show that the person deceived suffered the loss.

If you are found to have tried to obtain financial advantage by deception, you may be charged with larceny instead. Furthermore, the offence can be an alternative verdict to a charge of larceny and conversely, larceny can be an alternative verdict to a charge for the offence of fraud.

Penalties

The maximum penalty for an offence of obtaining financial advantage or causing financial disadvantage by deception is 10 years imprisonment.

However, it is important to note that it is classified as a ‘table 1’ offence. This means that it will be dealt with summarily in the Local Court unless the prosecution or defence elects for the matter to be heard in the District Court.

In the Local Court, the maximum penalty that the court can impose is limited to 2 years imprisonment and/or a $11,000 fine, for a single offence, and 5-years imprisonment for multiple offences.

Apart from a full-time custodial sentence, you may also be eligible for the following penalties based on the circumstances:

  • S10(1)(A) dismissal.

  • Conditional release order without conviction.

  • Conditional release order with conviction.

  • Fine.

  • Community corrections order.

  • Intensive corrections order.

When determining a sentence for a fraud offence, the court will consider factors including the amount of money involved, the length of time over which the offences occurred (if there are multiple instances), the motive for the crime, the degree of planning and sophistication involved, as well as whether there was an accompanying breach of trust.

A breach of trust refers to where an offender acts in a way which is contrary to what they have been engaged to do. Examples include where an employee defrauds his employee, or a solicitor misappropriates funds held on trust for their own use.

Defences

  • Claim of right (meaning you honestly believed you were legally entitled to the property),

  • Duress,

  • Necessity,

  • False allegation,

  • Mistaken identity,

  • Mental illness

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