The Offence of Dishonestly Obtaining a Financial Advantage by Deception

Former New South Wales RSL President Don Rowe has been received a criminal conviction, been ordered to pay a $2,000 fine and adhere to a  two-year good behaviour bond after using the organisation’s credit cards to pay almost $10,000 in phone bills and a hotel stay for family members

Former NSW RSL chief guilty

The former war veteran, who is in his seventies, was charged last year with two counts of dishonestly obtaining financial advantage by deception after he used an RSL credit card to pay for four phone services used by his family as well as a three-night Sydney hotel stay for his daughter over the Anzac Day long weekend.

He was found guilty in February this year because the expenditure was not related to his position with the RSL.

The story so far

The RSL – Returned Services League -was founded in 1916 to assist returning service men and their families after the first world war. Local clubs formed and as their associations became more established, they began to acquire clubhouses – in some cases gifted by wealthy families, or state governments, or purchased from fundraising efforts.

Over time these clubs consolidated in the Returned and Services League, separately incorporated in each state of Australia. In NSW, the RSL is incorporated under an act of state parliament. It has hundreds of semi­-autonomous local organisations called sub­-branches, each with its own president and board of directors.

In the 1970s the NSW government passed the Registered Clubs Act, which effectively meant that RSL sub-­branches big and small could no longer govern the operation of their own clubhouse bars and poker machines. The Act created new legal entities: separating the Returned Services League from the registered clubs.

In 2014, only a few days before ANZAC day, Don Rowe in his capacity as president of RSL NSW, was scathing in a media interview about  the fact that many RSL clubs across the state have become multi-million dollar making organisations at the expense of the original ideals and aims upon which they were founded.

The following year he was confronted with credit card fraud allegations and resigned shortly after. He initially defended the spending saying that neither the RSL’s honorary treasurer, or the financial audit and risk management committee ever disapproved of his expenses. His legal defence also pointed out that the position was voluntary and required vast amounts of time, as well as long stretches away from his family.

The court heard that Mr Rowe used the credit card to pay phone bills totalling $9063 for his wife, two sons and daughter, from 2012 to 2014. He also paid for a 3-night stay in a Sydney hotel room for his daughter over ANZAC weekend in 2010.

In addition, evidence was submitted that after buying a $60,000 car in 2007 by extending his home loan, Mr Rowe claimed the maximum RSL vehicle allowance of $1,600 per month to pay for it. Despite paying back some of that money in 2015 and, despite making admissions during a police interview two years later, he pleaded not guilty to the charges laid against him last year.

After hearing all of the evidence, Magistrate Jennifer Atkinson found Mr Rowe guilty of dishonestly obtaining a financial advantage by deception.

The sentencing hearing

During the sentencing hearing in Downing Centre Local Court, her Honour described Mr Rowe’s conduct as ‘reprehensible, because he was ‘in a position of trust.’

She further remarked that, “people in positions where they are spending money paid in by membership, as is the case with the RSL, need to be particularly careful about what is required of them (and) what they can spend.”

She also acknowledged that his fraud had been a catalyst to expose other problems within the RSL.

At the time of laying charges, Police alleged that Don Rowe had abused his position ‘amid a culture of ineptness.’

Financial mismanagement

Prior to those charges being laid against Mr Rowe last year, The State Government ordered an inquiry into alleged financial mismanagement at NSW RSL in 2017. This investigation was conducted by former Supreme Court Judge Patricia Bergin.

In her report, which was released in 2018, Justice Bergin found the RSL had been taken to the “brink of destruction” by rorting, and there were attempts to cover it up.

The report also showed that Mr Rowe spent $465,376 on his RSL credit card between 2009 and 2014. He was also found to have allowed his son to stay for free in RSL-owned accommodation in Sydney’s CBD for seven years.

In 2017, the The Australian Charities and Not For Profits Commission (ACNC) also launched its own investigation into every state and territory branch of the RSL across the nation as a result of the allegations of financial misconduct that had surfaced in New South Wales.

The ACNC is the national oversight body responsible for charities. It was established in 2012 to ensure that charities do the right thing with money given to them in good faith. It’s role is to maintain, protect and enhance public trust and confidence in the Australian not-for-profit sector. If a charity is found to be in breach of any of the regulations that define the collection and use of money obtained by donations then the ACNC has the power to de-register them. Serious cases of fraud or misuse of funds are typically referred to police for criminal investigation.

Dishonestly obtaining financial advantage by deception

Section 192E of the Crimes Act makes it a criminal offence 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 when the matter is referred to the District Court, or 2 years if it remains in the Local Court.

To establish the offence, the prosecution must prove that:

• By a deception, the defendant 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.

If the prosecution is unable to prove each of these elements beyond a reasonable doubt, the defendant is entitled to an acquittal.

Duress is a defence to the charge, as is having a ‘claim of right’ over the property, which means the defendant genuinely believed he or she was legally entitled to all of it.