Criminal Law – Fraud and related offences (NSW)
The offence of fraud is dealt with under section 192E of the Crimes Act 1900 (NSW) (“the Act”).
There are also other fraud related offences dealt with under the Act, namely:
In order to be found guilty of the offence of fraud, it must be proven that the accused has used deception to dishonestly:
- Obtain property belonging to someone else; or
- Obtain any personal financial advantage or cause any financial disadvantage to another.
It may still be considered dishonesty if the accused is willing to pay for property that they have obtained which belongs to another person.
Fraud is an alternative verdict to a charge for the offence of larceny and vice versa.
Section 192F of the Act states that an accused will be found guilty of for this offence if they dishonestly destroy or conceal any accounting records with the intention of:
- Obtaining property belonging to someone else; or
- Obtaining any personal financial advantage or cause any financial disadvantage to another.
An accused is guilty of this offence if they dishonestly make or publish, or concurs in making or publishing, any statement (whether or not in writing) that is false or misleading in any material with the intention of:
- Obtaining property belonging to someone else; or
- Obtaining any personal financial advantage or causing financial disadvantage to another.
An officer of an organisation is guilty of this criminal offence if they intentionally deceive members or creditors of the organisation about its affairs by:
- Dishonestly making, publishing, or concurring in making or publishing;
- A statement (whether or not in writing);
- That to their knowledge may be false or misleading material.
An “officer” is any member of the organisation who is concerned in its management, and also includes any person who holds themselves out to be an officer of the organisation.
An “organisation” is any body corporate or unincorporated association.
A “creditor” is any person who has entered into a security for the benefit of the organisation.
Dishonesty is determined by the trier of fact, who apply the following test:
- That the accused knew that their conduct was dishonest based upon the same standards that ordinary people know.
Deception means any deception as to fact or law by words or other conduct. It includes:
- Deception as to the intentions of the person using the deception or any other person; or
- 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.
The deception must be proven to be either intentional or reckless.
- Intentional is where the accused has intended to commit deception.
- Reckless is where the accused at least foresaw the possibility that their conduct would be deceptive.
A person “obtains property” if the person:
- Obtains ownership, possession or control of the property for themselves or for another person; or
- Enables ownership, possession or control of the property to be retained by themselves or by another person; or
- 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.
“Property belongs” to a person if the person:
- Has possession or control of the property; or
- Has a proprietary right or interest in the property.
- It cannot be an interest only from an agreement to transfer;
- or grant an interest or from a constructive trust.
- If property is subject equitable to a trust, the persons to whom it belongs include any person having a right to enforce the trust.
“Obtain” a financial advantage is:
- Obtaining a financial advantage for oneself or for another person; and
- Inducing a third person to do something that results in oneself or another person obtaining a financial advantage; and
- Keep a financial advantage that one has, whether the financial advantage is permanent or temporary.
“Cause” a financial disadvantage is:
- Causing a financial disadvantage to another person; or
- Inducing a third person to do something that results in another person suffering a financial disadvantage, whether the financial disadvantage is permanent or temporary.
Fraud and related offences are Table 1 indictable offences; therefore, they are to be dealt with in the Local Court unless the Prosecutor or accused makes an election to have the matter proceed before the District Court.
If the charge is heard before the District Court, the following penalties may apply if convicted of the offence:
- Section 192E – accused may be liable to imprisonment for ten (10) years.
- Section 192F – accused may be liable to imprisonment for five (5) years.
- Section 192G – accused may be liable to imprisonment for five (5) years.
- Section 192H – accused may be liable to imprisonment for seven (7) years.
However, if the charge is finalised in the Local Court, then the maximum penalty will be imprisonment for two (2) years.
There are many factors which affect whether the charge is dealt with in the Local or District Court. For instance, a major reason that would greatly affect the prosecutor’s decision to elect would be the amount or money or value of the property in question.
Fraud and related offences are serious offences with a potential penalty of gaol time. For this reason, it is important to seek legal advice so that you fully understand all options available to you before proceeding.
There may be defences or mitigating factors relevant to your situation.
JB Solicitors has a leading team of highly experienced criminal lawyers who can assist you with your matter. We understand the seriousness of the offence, and the difficulties you face when charged with fraud. You will be provided with accurate and tailored advice to assist you in achieving the best possible outcome for your personal circumstance.
If you have been charged with fraud and need to know your options moving forward, contact JB solicitors today.