Embezzlement is a type of white-collar crime that involves someone committing theft or misappropriation of funds in a position of trust. Moreover, people guilty of this criminal offence could face up to 10 years of imprisonment.
Embezzlement differs from larceny. The former typically involves theft committed by someone in a position of trust or authority over the items taken. Whereas, larceny occurs when a party takes others’ personal property without consent. Common examples of embezzlement include:
- Financial advisors stealing money from investors
- Cashiers who keep the money collected at the checkout counter
- Employees who steal business profits or goods from their employer
Prosecution for embezzlement and other theft-related offences may result in a criminal conviction and criminal records. In addition, people convicted of this crime can face serious long-term consequences in securing employment, obtaining licences, travelling, and applying for loans and insurance. Read on to find out more.
What Does the Crimes Act 1900 Say About Embezzlement?
State and federal legislation in Australia does not provide a direct legal definition of embezzlement. However, Part 4AA of the Crimes Act 1900 NSW deals with fraud offences. Particularly, Section 187 notes that embezzlement is a type of “stealing”. Also, embezzlement is a crime punishable by up to ten years in prison under Section 157 of the Crimes Act 1900.
The Crimes Act 1900 is a New South Wales legislation that codifies criminal law in the state, setting out the various offences and penalties. In establishing the crime, the prosecution must demonstrate beyond reasonable doubt that the alleged person:
- Is a clerk or servant of the employer
- Delivered to, received, or took possession of property on account of their employer
- Did the crime fraudulently
The element of fraud involves proof of:
- Dishonesty and deception
- Created financial advantage over the property of another
- Caused financial disadvantage
- Intentional or reckless actions
Furthermore, the offender may be prosecuted for embezzlement in the Local Court or the District Court. This will be determined based on the gravity of the offence and any other fraud offences the alleged person has been charged with. Read on to know about penalties regarding embezzlement.
Pleading Guilty or Not Guilty of Embezzlement
1. Guilty
Let’s use an example for this section of the article. Martin works as a cashier at a grocery store. However, Martin’s boss caught him pocketing cash while he was at the register. Now, Martin wants to plead guilty to embezzlement charges pressed against him. Below is a table that contains tips for Martin if he wants to plead guilty.
Well-drafted character references
Character references are letters or statements from people who know the defendant and can speak of their good character or reputation. Martin’s neighbours, past employers, and even professors can make character references for him. The court may reduce Martin’s penalty if they receive good character references.
Negotiate to drop charges
Martin should still seek legal advice from lawyers in order to negotiate to drop the charges. Lawyers are experienced in negotiating with opposing parties to drop their charges if possible.
Negotiate facts
This tip involves lawyers reaching out to the police in order to cross-check facts. However, some evidence and statements may not seem accurate or true. Thus, lawyers will always ensure that their clients who plead guilty can get a lighter punishment and better outcome.
Psychologist/Psychiatrist reports
Psychologist or psychiatrist reports may also improve the outcome of embezzlement cases. However, this may only work with offenders who have severe mental incapacities. The report may include and express the alleged offender’s:
- Mental state of the time
- Remorse
- Shame
- Insight on the offence occurred
- Plans for rehabilitation
Note: It’s still important to seek legal advice when alleged offenders opt for psychologist/psychiatrist reports.
2. Not Guilty
Let’s say, for instance, Martin was completely innocent of the embezzlement charge made against him. Martin pleaded not guilty, but his boss still wanted to press the charges against him. Hence, Martin’s boss will have to establish and prove that Martin did commit the crime in accordance with Section 157 of the Crimes Act.
The court may impose the necessary penalty, and if Martin’s boss succeeds in proving Martin’s crime. A not guilty plea is successful if the alleged offender:
- Found that his/her employer already obtained custody and control of the property before he/she took it.
- Believed that they had the legal right of the property (claim of right)
- Found lost property
- Was unaware that he/she had actual possession of the property
- Did not actually take such property
- Was coerced to embezzle the money or property (duress)
Embezzlement: Local Court Sentencing Options
1. Section 10 Orders
Section 10 of the Crimes (Sentencing and Procedure) Act 1999 provides the court with three orders to punish an offender who committed embezzlement. The orders are:
- Non-conviction due to clean criminal history
- Dismissal with no conviction on conditions set by the court
- Dismissal with no conviction on the condition that the offender enters into an intervention program.
2. Intensive Correction Order
Intensive correction orders are a sentence of imprisonment imposed on the condition that the defendant is of good behaviour. Furthermore, the offender must agree that a community corrections officer will supervise them instead of going to prison. Additional conditions may include:
- Home detention
- Electronic monitoring
- Curfew
- Community service
- Participation in rehabilitation or treatment programs
- Ban from drugs and alcohol
- Ban from certain locations
- Preventing the offender from engaging with certain relationships, associations, or groups
3. Conditional Release Order
Conditional Release Orders is another type of community-based order similar to Intensive Corrections Orders and Community Corrections Orders. A Conditional Release Order may be issued with or without a criminal record.
4. Local Court Fines
Individuals found guilty of embezzlement may face up to ten years in prison. This is stated in Section 157 of the Crimes Act. However, this maximum penalty is generally imposed on those who have their case heard in District Court. Most importantly, maximum penalties are only reserved for serious offences. The sentence is determined by the monetary value of the embezzled assets or money if the case is heard in Local Court. The following are the maximum penalties for embezzlement in the Local Court:
- More than $5000 – Limited to two years and/or 100 penalty units
- Less than $5000 – Two years imprisonment and/or 50 penalty units
- Less than $2000 – Two years imprisonment and/or 20 penalty units
5. Section 32 Orders
Section 32 of the Mental Health (Forensic Provisions) Act of 1990 provides a diversionary option for sentencing embezzlement offenders. However, this Section only applies to offenders who are:
- Cognitively impaired
- Suffering from a mental illness
- Suffering from a mental condition for which treatment is available in a mental health facility
If this is the case, a magistrate may:
- Adjourn the matter
- Grant the defendant bail
- Any other order the magistrate deems appropriate
- Dismiss the charges and order the offender’s legal guardian to bring the offender for assessment and/or treatment.
Importance of Seeking Legal Representation
Embezzlement is a serious criminal offence and people should not simply engage with the court without proper legal advice. JB Solicitors’ experienced lawyers can provide various options for clients to obtain the best outcome in their case.
Offenders who want to plead guilty may reach out to us if they want a lighter penalty. On the other hand, victims of embezzlement may also reach out to us if they want to impose the necessary penalties on an offender.
Contact our criminal defence lawyers today for more information about embezzlement in NSW.
