Dishonesty and Fraud
Understanding Dishonesty and Fraud Offences
These offences include fraud, making false and misleading statements, obtaining financial advantage by deception and more. Receiving a conviction for a deception or fraud related offence can have serious consequences on your liberty, ability to maintain and search for employment, overseas travel and obtaining or keeping a visa. We will meticulously prepare your case and vigorously defend a deception charge to achieve the best possible outcome for you and your future.
What are Dishonesty and 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.
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:
- Taking or appropriating property that belongs to another; or
- Making a financial advantage by deception; or
- 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.
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.
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.
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.
Common Dishonesty and Fraud Penalties
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.
An Intensive Corrections Order (ICO) is a custodial sentence of up to two years that the court decides can be served in the community. It is the most serious sentence that an offender can serve in the community.
Courts can add conditions to an ICO such as 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.
If an offender breaches an ICO the offender does not go before the Local Court. Less serious breaches can be dealt with by a Community Corrections Officer, and more serious breaches can be referred to the State Parole Authority who may revoke the ICO, requiring the offender to serve the remainder of their sentence in custody.
A domestic violence offender can only be sentenced to an ICO if the court is satisfied that the complainant 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.
Community Correction Orders can be used by courts to punish offenders for crimes that do not warrant imprisonment or an ICO, but are too serious to be dealt with by a fine or lower-level penalty.
The benefit of a CCO is that it is a flexible sentence that the court can tailor to reflect the nature of the offence and the offender’s subjective circumstances.
The court can select from a range of conditions, such as supervision by Community Corrections Officers, community service work (up to 500 hours) and curfews, to hold a particular offender to account and reduce their risk of reoffending. A court can also mandate psychological treatment under this order.
CCOs can be imposed for a period of up to three years.
A CCO always has a requirement for an offender to be of good behaviour, meaning they are not to commit any further offences. If any conditions under this order are breached, the order can be called up by the court and the offender sentenced for the offence that placed them on the order along with the offence that brought them back before the court.
There are two types of Conditional Release Orders, one where a conviction is imposed and one where a conviction is not imposed. Courts have the discretion to impose a conviction on a CRO if they consider it appropriate.
Courts typically sentence an offender to a Conditional Release Order without a conviction if they are before the court for the very first time, if the offence is not objectively serious in the circumstances and where the court is of the view that the offender is unlikely to present a risk to the community.
A conviction is usually imposed on a CRO when the court is of the view that the objective seriousness of the offence warrants a conviction. For domestic violence offences the principle of general deterrence plays greater weight, meaning the courts are required to reflect the community standards when sentencing.
The benefit of CROs is that the court can impose conditions such as drug and alcohol abstention, programs, non-association requirements or place restrictions where appropriate. CROs can also have a supervision condition. CROs can be imposed for a period of up to two years.
A CRO always has a requirement for an offender to be of good behaviour, meaning they are not to commit any further offences. If any conditions of this bond are breached, the bond can be called up by the court and the offender sentenced for the offence that placed them on the bond along with the offence that brought them back before the court.