While most categories of crime in NSW have fallen, our state has experienced a significant rise in fraud cases. Statistics published by the NSW Bureau of Crime and Statistics and Research (BOCSAR) suggest that the total number of fraud offences in 2013 and 2014 was 98,647, up 7.5% on the previous 24 month period.
Definition of Fraud
Section 192E of the NSW Crimes Act 1900 was created on 22nd February 2010 to replace several previous fraud offences.
The section makes it a crime to obtain property belonging to another, or obtain any financial advantage or cause a financial disadvantage to another, where this is done dishonestly by any deception.
The maximum penalty is 10 years imprisonment if the case is dealt with in a higher such as the District Court, or two years in the Local Court.
To be found guilty, the prosecution must prove beyond reasonable doubt that the defendant:
- By deception, acted dishonestly, and
- These actions created a financial advantage over another person’s property, or caused them to suffer a financial disadvantage, and
- The actions were intentional or reckless.
Categories of Fraudulent Conduct
There are several other sections of the NSW Crimes Act and Commonwealth Criminal Code Act which deal with various forms of fraudulent conduct, including:
- Blackmail.
- Embezzlement.
- Forgery.
- False or misleading documents.
- Obtaining money under false pretences.
- Identity theft.
- Destroying accounts
- Using a False Instrument.
Defences to Fraud Charges
A fraud prosecution requires the satisfaction of the above elements and an absence of any valid defence to the charge.
Available defences to fraud charges include:
- Where the actions were the result of an honest and reasonable mistake of fact,
- Where they occurred due to coercion or threats (duress), and
- Where they arose to avert serious injury or danger (necessity).
If the three previously-outlined ‘elements’ (ingredients) of the offence are established, and there is no valid defence, the defendant is liable to guilty verdict.
If that occurs, the next step is ‘sentencing’, where the Magistrate or Judge determines the penalty.
Factors Relevant to Sentencing
The penalties for fraud can range from lengthy prison sentences, down to findings of guilt without a criminal conviction, and just about everything in between, including good behaviour bonds, fines, community service orders, intensive correction orders, suspended sentences and home detention.
The penalty applicable to any given offence will depend on a range of factors, including:
- The amount of money involved.
- The amount paid back, if any.
- The length of time over which the offence was committed
- The reason behind the offending conduct eg greed rather than need.
- The extent of the breach of trust eg those in positions of greater trust and responsibility may be sentenced more harshly.
- The degree of planning and sophistication involved eg highly organised criminal activity may be sentenced more harshly than acts of opportunism.
- Whether there is a plea of guilty.
- Subjective factors such as age, maturity, addiction, mental illness, demonstrated remorse, any prior criminal record etc.
If you have been charged with a fraud offence, it is a good idea to speak with an experienced criminal lawyer to discuss your options and the best way forward.
