Most fraud charges fall under the category of general fraud, pursuant to section 192E of the Crimes Act 1900. Fraud charges are often particularised or described as "obtain benefit by deception". Previously, the various circumstances of offending that are now covered by the one offence provision under section 192E, were accounted for by more than 15 provisions. This meant that when considering laying fraud charges NSW Police were required to consider the precise circumstances of the alleged offending and try to find the specific fraud offence provision that related to the alleged crime. This often meant that accused people could defend charges on technicalities, due to being charged under the wrong provision.
The general approach taken by the legislature now means that in most circumstances, authorities only need to rely on the general fraud NSW provision when charging someone with a typical fraud offence. However, fraud is still a complex area of criminal law. Our Criminal Lawyers Sydney and NSW have extensive experience in this difficult area of law.
(1) A person who, by any deception, dishonestly:
(a) obtains property belonging to another, or
(b) obtains any financial advantage or causes any financial disadvantage,
is guilty of the offence of fraud.
The maximum penalty for a fraud offence pursuant to section 192E is a term of imprisonment for 10 years. However, if the matter is finalised in the Local Court, the maximum penalty is a term of imprisonment for 2 years. The Court can also make an order for compensation.
The general fraud (NSW) legislative provision contains factual elements that need to be defined before properly understanding under what circumstances conduct can constitute a criminal fraud. The three terms that need to be defined are "deception"; "obtains property belonging to another"; and "obtains financial advantage" or "causes financial disadvantage".
Deception is defined at section 192B of the Act as any deception, by words or other conduct, as to fact or as to law, including:
(a) a deception as to the intentions of the person using the deception or any other person, or
(b) conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make.
Although people often act dishonestly when engaging in certain transactions, deception is an essential element that is sometimes not able to be proved by the prosecution in general fraud cases. Authorities often believe that just because someone was dishonest in their dealings with another, that they have committed fraud and for that reason only, charge someone. However, "dishonesty" and "deception" are two different elements of the offence of fraud and although they often go hand in hand, both must be proved in every fraud case. Our criminal lawyers have been successful in defending charges or persuading police to withdraw charges due to one of these elements not being able to be proved. The prosecution also has to prove that the deception was intentional or reckless.
Section 192C of the Act states that a person "obtains property" if:
(a) the person obtains ownership, possession or control of the property for himself or herself or for another person, or
(b) the person enables ownership, possession or control of the property to be retained by himself or herself or by another person, or
(c) the person induces a third person to do something that results in the person or another person obtaining or retaining ownership, possession or control of the property.
The property of course has to belong to another person or entity. As with most offences dealing with property, there also has to be an intention to permanently deprive the owner of the property.
Section 192D of the Act states that to obtain a financial advantage includes:
(a) obtain a financial advantage for oneself or for another person, and
(b) induce a third person to do something that results in oneself or another person obtaining a financial advantage, and
(c) keep a financial advantage that one has,
whether the financial advantage is permanent or temporary.
To "cause" a financial disadvantage means:
(a) cause a financial disadvantage to another person, or
(b) induce a third person to do something that results in another person suffering a financial disadvantage,
whether the financial disadvantage is permanent or temporary.
Unlike the requirement when dealing with property, there does not need to be an intention to permanently deprive the owner of the property to make out the offences that specifically allege a financial advantage being obtained or a financial disadvantage being caused. An example can be where a bank teller moves funds from a client's account into their own account, uses those funds, and then returns the same amount to the customer's account.
The above provision for fraud offences catches a broad range of circumstances and scenarios. For that reason, the maximum penalty is imprisonment for 10 years. This can be compared to the maximum penalty for the previous offence provision regarding "obtaining a benefit by deception", which was a term of imprisonment for 5 years. Some of the previous offences that now fall under the general fraud offence provision had maximum penalties of 1 year, others had a maximum penalties of 7 years and others a maximum penalty of 10 years.
The set maximum penalty of 10 years therefore covers what were previously the more serious types of fraud. For that reason, when someone is being sentenced for a fraud offence pursuant to section 192E, the Court needs to consider carefully the type of fraud being committed and under what particular circumstances, to determine where the objective seriousness of the offending conduct.
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