Fraud is an offence under section 192E of the Crimes Act 1900 (NSW) with a maximum penalty of 10 years imprisonment.
There is also an offence of fraudulent embezzlement by servant pursuant to section 157 of the Crimes Act 1900 (NSW) which also carries a maximum penalty of 10 years imprisonment, and would cover fraudulent acts committed by an employee against their employer.
What constitutes a fraud offence?
Fraud can generally be defined as dishonestly obtaining the property of another or obtaining a financial advantage or causing a financial disadvantage to another through deception. A basic illustrative example of a fraud would be using someone else’s credit card and pin to withdraw cash from an ATM.
An offence of fraudulent embezzlement of property by a servant deals with the situation where an employee dishonestly intercepts and takes possession of goods or money on behalf of an employer before the employer takes possession. For example, when an employee takes delivery of goods to a store, and keeps the goods for himself before placing them in the possession of the store.
What do the police need to prove?
To be found guilty of an offence of fraud in NSW the police must prove the following elements:
- An act of deception that results in:
- You obtaining a financial advantage; or
- Someone suffering a financial disadvantage; or
- You obtaining property belonging to another.
- The obtaining of the financial advantage, disadvantage or property was dishonest.
Please however note the following:
- A person may obtain property dishonestly even if they were willing to pay for the property or did pay for the property.
You may be able to put in issue that you believed you had a claim of legal right to the property or financial advantage obtained
Possible defences for fraud offences
It is always a defence where you believe that an essential element of an offence can not be proved by the prosecution some specific defences to this type of offence include:
Claim of right made in good faith:
The police must prove that the taking of the property in question was committed without you having a claim of right made in good faith to the property. However, you should note that you must have a genuine belief of legal entitlement to take the property in question, and not a moral entitlement. A legal entitlement would arise if you honestly believe you have a right of ownership to the property.
The defence of necessity is a defence that is available to a number of offences. Necessity can be raised when a person commits an offence in circumstances that make committing the offence necessary to avoid serious consequences.
For the defence of necessity it must be found that the person committed the criminal offence:
- In order to to avoid certain consequences which would have caused ‘irreparable evil’ to themself or another.
- The accused honestly and reasonably believed that they were in a situation of imminent peril and it was necessary for him or her to commit the acts that constituted the offence, and
- The acts to avoid the peril must not have been disproportionate to the threat of danger.
The accused must raise the defence of necessity but once it is raised the prosecution must disprove the defence beyond a reasonable doubt.
It is a defence to many offences where the offending conduct was done due to Duress. Duress is where an offender is placed in a situation where they have no choice other than to commit an offence due to serious threats to either them or their family.
The defence of duress involves 3 critical elements. A person will not be held criminally responsible for an offence if the offence was committed:
- Because of threats of death or really serious injury to him or herself or to their family, and
- Those threats being of such a nature that a person:
- Of ordinary firmness and strength of will
- Of the same maturity and sex of the accused, and
- In the accused’s position,
- Would have given in to the threats and committed the offence
When looking at the first element, the question is whether a threat was made, and if so, what led the accused to believe the threat would be carried out. These threats may be made expressly or impliedly. It does not matter if there is no real threat to the person or family. What matters is whether the person held a genuine belief that there is an imminent threat of death or serious injury to his or her self or family if he or she did not do what was demanded of them.
The second element is an assessment of the circumstances surrounding the threats. When considering this element the court will have regard to, among others, the nature of the threat, the person making the threat, the accused’s knowledge of the person making the threat and all circumstances which may affect a reasonable person’s reaction to the threats.
Essentially the test for this second element is if you place an ordinary and reasonable person of the same maturity and sex of the accused in the exact same set of circumstances posed to the accused, would that reasonable person succumb to those threats and commit the offence.
When assessing the third element, the question is whether there are any other alternatives other than committing the offence. A person will not be able to raise the defence of duress even if they held a reasonable belief that the threats would be carried out if he or she could have avoided the threats by alternative means other than committing the offence.
If the prosecution disproves any of the three elements listed above then that the defence will not be made out. If they are unable to disprove any of the elements then offender should be found not guilty.
Penalties for fraud offences in NSW
Fraud pursuant to s 192E of the Crimes Act 1900 (NSW) carries a maximum penalty of 10 years imprisonment. Fraudulent embezzlement by a servant pursuant to s 157 of the Crimes Act 1900 (NSW) also carries a maximum penalty of 10 years imprisonment.
It is also open to the court in addition to full-time imprisonment to consider the following sentencing options:
Conditional Release Order
Conditional Release Orders (CRO) are often used to deal with first time offenders and less serious offences where the offender is unlikely to present a risk to the community.
A CRO is an order of the court that you are to be of good behaviour (not commit any other offences) for a specific period of time.
CROs can include conditions such as drug and alcohol abstention, requirements to attend programs, non-association requirements or place restrictions where appropriate. CROs can also have a supervision condition. Courts have discretion to not impose a conviction on a CRO, if they consider it appropriate. CROs can be for a maximum period of 2 years.
The CRO acts as a warning and provides the option to divert less serious offenders out of the criminal justice system, freeing up resources to deal with the offenders who cause the greatest concern to the community. If an offender commits any further offences while on a CRO, subsequent penalties may be more severe.
Community Corrections Order
Community Correction Order’s (CCO) are used to punish offenders for offences that do not warrant imprisonment or an Intensive Corrections Order, but are too serious to be dealt with by a fine or lower level penalty.
CCO’s are a flexible sentence that the court can tailor to reflect the nature of the offender and the offence. The court can select from the range of conditions, such as supervision by Community Corrections Officers, community service work (up to 500 hours) and curfews, to hold offenders to account and reduce their risk of reoffending. CCOs can be imposed for a period of up to three years.
Intensive Corrections Order
An Intensive Corrections Order (ICO) is a custodial sentence that the court decides can be served in the community. Community safety is the court’s paramount consideration when making this decision. ICO’s can be for a maximum of 2 years for single offences and up to 3 years where there are multiple offences.
Supervision is a mandatory condition of an ICO. Further the Courts must impose at least one additional condition. Conditions that can be included in an ICO are: home detention, electronic monitoring, curfews, community service work (up to 750 hours), alcohol/drug bans, place restrictions, or non-association requirements. Offenders may also be required to participate in programs that target the causes of their behaviour.
The ICO is the most serious sentence that an offender can serve in the community. ICOs are not be available for offenders who have been convicted of murder, manslaughter, sexual assault, any sexual offence against a child, offences involving discharge of a firearm, terrorism offences, breaches of serious crime prevention orders, or breaches of public safety orders.
A person convicted of a domestic violence offence can only be sentenced to an ICO if the court is satisfied that the victim or likely co-residents can be adequately protected. For example, a domestic violence offender is not eligible for an ICO with a home detention condition if they are intending to reside with the victim.
Full Time imprisonment
Full Time imprisonment is the most serious penalty a court can impose. The sentence involves a period of time that will be spent inside an NSW correctional centre. When imposing a full time custodial sentence in most circumstances the court will apply a Non-Parole period, this is the minimum time that must be spent in a correctional centre. After the expiration of the Non-Parole period you will be eligible for release with the remainder of the sentence to be spent in the community on parole.
Book a Free Consultation for a fraud offence charge.
Our Lawyers at First Offence Legal have represented many clients who have been charged with fraud and related offences in many different sets of circumstances. Fraud is a serious offence, and a fraud charge will often carry with it complex evidence and legal issues. It is extremely important that you consult an experienced criminal defence lawyer as soon as possible to guide you through the process. We can assist you in successfully defending the matter in court or help you get the best result possible on sentence. For a first offender, your chances of imprisonment are relatively low for this offence, but it will depend heavily on the circumstances of your case, as this offence can cover a broad range of conduct.
If you or anyone you know has been charged with a larceny offence, you should contact First Offence Legal and book a free no obligation consultation. Remember to always make First Offence Legal your first defence!