Fraud Offences
Being charged with an offence related to fraud can carry a great burden on your life including affecting your ability to work and obtain financial assistance in the future. Our goal at Criminal Lawyers – Defending You is to reduce this burden by providing honest and relevant legal advice and the strongest possible defence against your charges. You can significantly increase your chances of receiving a favourable penalty or a not-guilty verdict by getting an experienced criminal defence lawyer on your side.
Please see below for more information on the offence that relates to you. If you have any further questions or want to discuss your situation with proficient and experienced lawyers, contact our team at (02) 9060 9799 or email our Principal Lawyer at samuel@saslawyers.com.au.
Fraud
If you are accused of fraud, you will be charged under section 192E of the Crimes Act 1900 (NSW). Under section 192E, a person is guilty of the offence of fraud if they, by any deception and dishonestly, obtain property belonging to another, obtain any financial advantage, or cause financial disadvantage.
What Must the Prosecution Prove?
The Prosecution will need to prove that a person by deception and dishonestly did one of the following:
Obtained property belonging to another, or
Obtained any financial advantage or caused any financial disadvantage.
And did so, intentionally, or recklessly
Element 1 - By Deception, You Acted Dishonestly
Deception is established under section 192B of the Crimes Act 1900 (NSW). You can act deceptively through words or any other conduct. Any conduct that forms a false pretence or deception will satisfy this requirement. This includes making a false statement or causing a computer or any electronic device to make unauthorised transactions or responses.
Section 4B of the Crimes Act 1900 (NSW) states that whether the conduct amounts to dishonesty is to be determined by
The judge or jury under the standards of ordinary people, and
known by the defendant to be dishonest according to the standards of ordinary people.
This is an inquiry into whether an ordinary person would have found your conduct dishonest and whether you would have known that your conduct was dishonest to the ordinary person. The court will consider whether a reasonable person in your position would have acted differently. It is important to note that the Prosecution does not have to prove you knew it was dishonest, they merely must prove the property was taken dishonestly.
Section 192E(2) of the Crimes Act 1900 (NSW) states that a person obtaining property belonging to another may be dishonest even if the person is willing to pay for the property
Element 2 - Obtaining Property Belonging to Another
Section 192C(1) of the Crimes Act 1900 (NSW) states that obtaining property includes:
You obtained ownership, possession, or control of the property to be retained for yourself or another person, or
Enabled ownership, possession, or control of the property to be kept by yourself or another, or
You induced a third person to do something that results in retaining ownership, possession, or control of the property.
As per section 192C(3) of the Crimes Act 1900 (NSW), a property belongs to a person if:
The person has possession or control of the property, or
The person has a proprietary right or interest in the property
Once the Prosecution establishes beyond reasonable doubt that you obtained property belonging to another, they must also prove that you intended to permanently deprive the other of that property as stated under section 192C(2) of the Crimes Act 1900 (NSW).
Element 3 - Obtaining Any Financial Advantage or Causing Any Financial Disadvantage
If you have not obtained property belonging to another, the Prosecution must prove that your actions allowed you to obtain a financial advantage or caused another to suffer a financial disadvantage. Your deceptive and dishonest actions must have caused a financial advantage or disadvantage.
Section 192D(1) of the Crimes Act 1900 (NSW) states that obtaining a financial advantage includes:
You obtained a financial advantage for yourself or another person, and
You induced a third person to do something that resulted in obtaining a financial advantage for yourself or another person, and
You kept that financial advantage
It does not matter whether the financial advantage is permanent or temporary.
Section 192D(2) of the Crimes Act 1900 (NSW) states that to cause a financial disadvantage means:
You caused a financial disadvantage to another person, or
You induced a third person to do something that results in another person suffering a financial disadvantage,
It does not matter whether the financial advantage is permanent or temporary.
Does borrowing or lending amount to permanently depriving?
Section 192C(4) of the Crimes Act 1900 (NSW) states that a person obtaining property belonging to another without meaning to permanently deprive the other of that property has, nevertheless, intended to permanently deprive the other of that property if the person intends to treat the property as his or her own to dispose of regardless of the other’s rights. Borrowing or lending the property may amount to this, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. In essence, if it is established that a person has an intention to treat the object as their own to dispose of regardless of the other’s rights, it will satisfy this requirement.
Without limiting the above, section 192C(5) of the Crimes Act 1900 (NSW) states if a person:
Has possession or control (lawfully or not) of property belonging to another, and
Parts with the property under a condition as to its return that the person may not be able to perform
And the parting is done for purposes of his or her own and without the other’s authority
Then the parting amounts to treating the property as their own to dispose of regardless of the other’s rights.
What is Reckless?
If the Prosecution attempts to establish that your actions were reckless, it must be proven that you recognised the possibility that your behaviour was deceptive and dishonest but acted anyway.
Maximum Penalties
The maximum penalty is 10 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on individual circumstances and the nature of your particular offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available to this charge can include:
Forgery
Part 5 of the Crimes Act 1900 (NSW) deals with forgery and offences related to forgery.
Making a False Document - Section 253 of the Crimes Act 1900 (NSW)
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You made a false document
You possessed the intention that you or another person will use it to induce some person to accept it as genuine
It is accepted as genuine:
To obtain any property belonging to another, or
To obtain any financial advantage or cause any financial disadvantage, or
To influence the exercise of public duty.
Using a False Document - Section 254 of the Crimes Act 1900 NSW
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You who used a false document knew that it was false
You used the false document intending to induce some person to accept it as genuine, and
It is accepted as genuine:
To obtain any property belonging to another, or
To obtain any financial advantage or cause any financial disadvantage, or
To influence the exercise of public duty.
Possession of a False Document - Section 255 of the Crimes Act 1900 NSW
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You who had in your possession a false document, knowing it was false
You possessed the false document with the intention that you or another will use it to induce some person to accept it as genuine
It is accepted as genuine:
To obtain any property belonging to another, or
To obtain any financial advantage or cause any financial disadvantage, or
To influence the exercise of a public duty
Making or Possession of Equipment etc. for Making False Documents - Section 256 of the Crimes Act 1900 NSW
There are three possible charges that involve making or possessing equipment for making a false document. They are set out under section 256 of the Crimes Act 1900 (NSW). The most serious charge under this section is outlined in section 256(1), which states:
A person who makes, or has in his or her possession, any equipment, material, or other thing designed or adapted for the making of a false document—
knowing that it is so designed or adapted, and
with the intention that the person or another person will use the equipment, material, or another thing to commit the offence of forgery.
Maximum Penalties
Forgery-making false document
The maximum penalty is 10 years imprisonment.
Using a false document
The maximum penalty is 10 years imprisonment.
Possession of a false document
The maximum penalty is 10 years imprisonment.
Section 256(1): Making or possession of equipment etc. for making false documents
The maximum penalty is 10 years imprisonment.
Section 256(2) and (3): Making or possession of equipment etc. for making false documents
The maximum penalty is 3 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on individual circumstances and the nature of your particular offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
False Accusations
Under section 314 of the Crimes Act 1900 (NSW), it is an offence to make an accusation against another person intending for that person to be subject to an investigation of an offence where you know that person is innocent of the offence.
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You knew someone was innocent
You made a false accusation against that person
You intended for that person to be subjected to a criminal investigation
Maximum Penalties
The maximum penalty is 7 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on individual circumstances and the nature of your particular offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available for this charge can include:
You had no intention of making someone subjected to a criminal investigation
You believed the accusation you made was the truth
You did not make the accusation that you have been accused of
You were coerced or threatened to act a certain way under the circumstances (Duress)
Your actions were necessary to prevent serious injury (Necessity)
Embezzlement
'Embezzlement' is a form of fraud in which you were entrusted and had lawful access to funds or assets of your employer, and you stole or misappropriation the funds or assets. Embezzlement by a clerk or servant (also known as an employee) is an offence under section 157 of the Crimes Act 1900 (NSW).
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You were a clerk or servant (employee) to your employer at the time of the offence
You stole or misappropriated money or assets belonging to your employer by receiving, delivering, or taking the money or assets into your possession in a fraudulent manner
Maximum Penalties
The maximum penalty is 10 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on individual circumstances and the nature of your particular offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available for this charge can include:
A claim of right – You honestly and reasonably believed that you had a legal claim to the property
You had no intention of permanently depriving your employer of the property at the time of taking it
Your employer already had the property in their possession or control
You were coerced or threatened to act a certain way under the circumstances (Duress)
Your actions were necessary to prevent serious injury (Necessity)
Intention to Defraud by Destroying or Concealing Accounts
Under section 192F of the Crimes Act 1900 (NSW), it is an offence to intentionally defraud by destroying or concealing an accounting record. This is where you conceal or destroy accounting records with the intention to obtain property, or financial advantage, or cause financial disadvantage from another person or business.
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You dishonestly destroyed or concealed any account record with the intention to
Obtain property belonging to another, or
Obtain financial advantage or
Cause a financial disadvantage
Maximum Penalties
The maximum penalty is 5 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on individual circumstances and the nature of your particular offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available for this charge can include:
Honest and Reasonable Mistake – You honestly believed that you were entitled to destroy or conceal the account record, or you honestly did not know the nature of the account record when you destroyed or concealed it. Either belief was a reasonable belief considering all circumstances as determined by the court.
You were following instructions
You had no intention of obtaining any property belonging to another, nor to obtain a financial advantage or cause a financial disadvantage
Intention to Deceive
Under section 192H of the Crimes Act 1900 (NSW), it is an offence to intentionally deceive members or creditors of an organisation by false or misleading statements as an officer or manager of the organisation.
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You were a manager or officer of an organisation
You made or published or concurred in the making or publishing of a false or misleading statement
You did so dishonestly
You had the intention of deceiving members or creditors of the organisation about its affairs
Who is a Creditor of an Organisation?
A creditor of an organisation includes a person who has entered into a security for the benefit of the organisation.
Who is an Officer of an Organisation?
An officer of an organisation includes any member of the organisation who is concerned about its management and any person purporting to act as an officer of the organisation.
What is an Organisation?
An organisation means any corporate body or unincorporated association.
Maximum Penalties
The maximum penalty is 7 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on individual circumstances and the nature of your particular offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available for this charge can include:
Honest and Reasonable Mistake – You honestly believed the statement you were making was true. This belief was a reasonable belief considering all circumstances as determined by the court.
The statement you made was trivial or inconsequential. This means that it was not capable of influencing the complainant’s attitude to the claim made upon it.
You had no intention to deceive members or creditors of the organisation.
General Dishonesty
It is an offence under section 135.1 of the Criminal Code Act 1995 (Cth) to dishonestly obtain a gain, cause a loss or cause a risk of loss to a Commonwealth entity, such as Centrelink or some other government body.
Section 135.1(1) or (3):
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You obtained a gain or caused a loss to a Commonwealth entity
You did so dishonestly
You had the intention to obtain a gain or cause a loss to a Commonwealth entity
Section 135.1(5):
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You caused the loss or caused a risk of loss to a Commonwealth entity
You did so dishonestly
You knew or believed that the loss would occur or that there was a substantial risk of the loss occurring
You had the intention to cause the loss or risk of loss to a Commonwealth entity
In any of these offences, the Prosecution does not need to prove that you knew that the other person was a Commonwealth entity.
Maximum Penalties
The maximum penalty is 10 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on individual circumstances and the nature of your offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available for these charges can include:
Honest and Reasonable Mistake – You honestly believed that you were entitled or allowed to do what you did that caused the loss or gain. This belief was a reasonable belief considering all circumstances as determined by the court.
You did not know or did not know of the substantial risk of your actions causing a loss or gain.
You did not obtain a gain or cause a loss, or your actions were not the reason for the gain or loss.