DISHONESTY & FRAUD OFFENCES

In New South Wales fraud offences are governed by Part 4AA of the Crimes Act 1900. This section was inserted into the Crimes Act 1900 with effect from 22 February 2010. Extensive changes were made in 2010 with respect to fraud offences in NSW including more than 30 offences being replaced by 5 offences.

These charges may be finalised in the Local Court or the District Court upon election from the Director of Public Prosecutions or the accused. The major factor in determining which court is to finalise a charge of this nature is the amount of money or value of the property associated with the charge.

Fraud and Attempted Fraud

Section 192E(1) of the Crimes Act 1900 makes it an offence for a person who, by any deception, dishonestly obtains property belonging to another or obtains a financial advantage or causes any financial disadvantage.

This means that fraud can occur in any of the following ways:

  1. Taking or appropriating property that belongs to another; or
  2. Making a financial advantage by deception; or
  3. Causing a financial disadvantage by deception.

The obtaining of the property or financial advantage or the causing of the financial disadvantage must be the result of the accused’s deception. The prosecution is not required to prove that the deceived person actually suffered the loss.

Section 4B of the Act defines ‘dishonesty’ as dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.

Section 192B of the Act provides a general definition of ‘deception’ which includes any deception, by words or other conduct, as to fact or as to law. It must be either reckless or intentional.

A financial advantage or a financial disadvantage may be permanent or temporary.

This offence carries a maximum penalty of 10 years imprisonment.

Intention to defraud by destroying or concealing records

Section 192F of the Crimes Act 1900 makes it an offence to dishonestly destroy or conceal accounting records with the intention of obtaining property or a financial advantage.

This offence carries a maximum penalty of 5 years imprisonment.

Intention to defraud by false and misleading statement

Section 192G of the Crimes Act 1900 makes it an offence to dishonestly make, publish or concur in making or publishing, a statement that is false or misleading in a material particular with the intention of obtaining property or a financial advantage.

‘Material’ is not defined but to be material the statement must be of significance and not merely trivial or inconsequential in relation to the object to be achieved by making it.

‘False’ is not defined but a statement may be false because material facts have been omitted from it whereby it creates a false impression.

This offence carries a maximum penalty of 5 years imprisonment.

Intention to deceive by false or misleading statements of officer of organisation

Section 192H of the Crimes Act 1900 makes it an offence for an officer of an organisation to make a false or misleading statement with the intention of deceiving members or creditors of the organisation about its affairs.

Section 192H(2) of the Act contains definitions of “creditor”, “officer” and “organisation”.

This offence carries a maximum penalty of 7 years imprisonment.

Penalties for fraud-related offences

The courts have consistently held that general deterrence is a particularly important sentencing factor for fraud offences. Such crimes frequently involve a serious breach of trust and are usually only able to be committed because of the previous good character of the person who has been placed in the position of trust.

Where the offence involves a breach of trust by an employee, particularly involving large or substantial sums, systematic dishonesty with planning and some sophistication, unless there are special features present, general deterrence requires that there be substantial sentences of imprisonment imposed.

In assessing the objective seriousness of a fraud-related offence the court may consider the following factors:

  • Amount of money involved;
  • Length of time over which the offence was committed;
  • Motive;
  • Degree of planning;
  • Breach of trust.

The factors that aggravated a fraud related offence include:

  • Breaching a position of trust;
  • The victim being vulnerable for example, being very young or very old or having a physical or intellectual disability;
  • There being multiple victims;
  • There being a series of criminal acts;
  • The fraud being part of an organised criminal activity;
  • The offence being committed for financial gain.

The factors that can mitigate a fraud-related offence include:

  • The accused suffers from a diagnosed mental health condition or cognitive impairment that had affected their capacity to make informed and rational decisions;
  • The accused is a person of good character and does not have a criminal record;
  • The accused entered a plea of guilty to the offence at the earliest available opportunity;
  • The accused suffered delay in having the matter finalised which has left them in a position of uncertainty.

The sentence that can be imposed for fraud related offence depends on the assessment of the objective seriousness of the offences and the accused’s subjective circumstances and can include a sentence of full-time imprisonment, an Intensive Corrections Order, a Community Corrections Order, a fine or a Conditional Release Order with or without conviction.

If you have been charged with a fraud related offence, call Karnib & Co Lawyers at any time on 0450503696 or email us on [email protected] to arrange a free consultation. For those who are unable to attend our offices, we offer conferences by telephone, Skype, Zoom and FaceTime anywhere around the world.