Fraud Offences and Penalties in New South Wales (NSW)

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There are lots of dishonest actions people classify as fraud offences. It spans from crimes of illegal appropriation, deceit, dishonesty to other activities just short of a stealing violation.

However, the Crimes Act 1900 (NSW) defines all actions that the law considers fraudulent offences.

If you are convicted for a fraud offence in a NSW law court, the offence will show up on a Nationally Coordinated Criminal History Check in NSW.

Offence of Fraud

Section 192E of the Act stipulates that a person is guilty of fraud if the Court finds them guilty of;

• Taking or appropriating a property that belongs to another (victim),
• Makes a financial advantage illegally over another person (victim),
• It causes a person (victim) to lose some financial advantage or property intentionally.

These definitions broadly consist of all acts of dishonesty, illicit gains, appropriation, scams, pranks, Ponzi schemes, and other acts of deception.

The keywords in this legal definition are;

• Deception,
• Dishonesty,
• Illegal Obtaining/appropriation.

Deception

Section 192B of the Crimes Act defines deception as something that a person says or something does and can be about facts or law. And, a person conceives and executes these acts to mislead a person (victim) intentionally.

An example can be to trickily manipulate a programmed computer or algorithm (without legal permission). Or,

Unlocking a person's device/gadgets without their consent by entering their passwords

The law still counts the Act as deception, whether it was reckless or intentional. To be reckless under the law means acting even though you knew such actions were possibly deceptive. It does not matter if you were unsure of the result of the outcome as long as you did not carry out sufficient research.

Dishonesty

Section 4B of the Crimes Act 1900 further describes offences that include dishonesty. However, actions of "dishonesty" can vary depending on the Jury's prerogatives. The Jury will employ usual standards to determine whether the offence included a dishonest act.

What Court handles a fraud case?

Fraud cases are indictable offences in Australia and NSW. However, if the parties elect to hear the matter in a Magistrate court, it will be handled as a summary offence. Other less severe cases of fraud offences are summary offences before a Magistrate. A District Court in Australia handles indictable offences.

What penalties does the Court impose on fraud offences?

Aside from cases of aggravation, fraud offences incur punishments of up to 10 years. However, if the Magistrate court handles such matters Summarily, the Court will impose penalties of not more than three years imprisonment.

Furthermore, the Magistrate or Judge can decide to impose or exchange minor sentences for other programs like;

• Section 10 dismissal
• Conditional release order
• Fines
• Intensive Correction orders

Fraud offences with intentions to pay

The Court can still find a person dishonest in their actions even if they are willing to pay for the property. The Jury can rule that the person already committed a fraudulent act, regardless of what they intended to do after.

Fraud involving parts of a property

A person is guilty of fraud if they moved part of the whole property (stolen item). It is irrelevant how long they have accumulated or the amounts they took.

If the Court is satisfied with the evidence that you obtained parts of the whole property through deceits or other illicit means, it can convict you of fraud offences.

Fraud offences and Larceny

The Court can transfer a larceny charge to a fraud charge if it satisfies all the latter's conditions (by law). The Court can also issue a conviction of Larceny for an original fraud offence.

Intention to defraud by destroying/concealing records

Under Section 192F of the Crimes Act, it is an offence to destroy or conceal accounting records dishonestly. Where the Court concludes from evidence that the offender acted that way with the intention to;

• Obtain or claim a property belonging to another,
• Obtain a financial gain over another.

The Court will convict them of fraud offences. The punishment for these offences is an imprisonment term of up to 5 years.

Fraud through False or misleading statement

The law under Section 192G of the Act considers it a fraud offence if a person makes or publishes a public remark. It is also an offence to support or enable such comments or dishonest statements.

The observation or words does not have to be in a document before the law considers it a fraudulent act.

The Court will convict you of fraud offences if such dishonest statement results in;

• Obtain property belonging to another,
• Get a financial advantage or cause a disadvantage with intent.

Such fraud offences attract a penalty term of up to 5 years imprisonment.

Offence to deceive members or creditors by misleading statements

A person, or an officer or other officials of an organisation will be guilty of fraud offence if they;

• Deceiving members or creditors about the State of the organisation,
• Dishonestly make or publish deceitful statements,
• Concurs to making or issuing such a statement.

Under Section 192H, it is immaterial that the person did not have full knowledge of the integrity of the matter. The Court will find them guilty if the person knew such statements could be false or misleading.

The statements do not have to be written for the Court to convict a person of the offence.

Convictions of this offence incur a stipulated penalty of 7 years imprisonment.

What are the aggravating circumstances for fraud offences?

Under the law, some circumstances can worsen the severity of a fraud offence. These constitute the aggravating factors for a fraud offence.

Some of the aggravating circumstances include where;

1. The victim was a public officer serving in any of these capacities;

• An emergency service worker,
• Correctional officer, Judicial officer,
• Council law,
• Teacher/Educator,
• Community worker,
• And any other public officer.

2. The offender attempted or threatened to use a weapon,
3. The offence involved the use of violence (e.g. an assault) or threats on the victim,
4. The offender used an explosive or other chemical or biological agents,
5. The crime is committed in a group of people in a large company,
6. The crime involved wanton harm to the victim,
7. The offender has a previous criminal conviction for such actions in the past,
8. The offender forced narcotics, drugs, or other intoxicating substances on the victim,
9. The offence occurred in the presence of a child or persons under 18,
10. There was substantial harm to the victim from the attack by the offender,
11. The crime occurred without regard for the safety of the public,
12. The offence is motivated by hatred, discrimination, pogroms or prejudice against a group,
13. The offence is intended for a financial gain
14. The victim was a person over the age of 60 years.

What factors does the Court consider during sentencing?

The severity of a fraud offence can affect the sentencing or punishments the Court will impose. It can also determine whether the prosecutor agrees to hear the matter before a magistrate or treat it as an indictable offence.

• The amount of money involved or the size of the loss

If the amount involved or the loss's scope is vast, the victim/prosecutor usually elect to take the matter before a district court. If the loss is significant and leads to a profound impact against the victim or the State, the Court will impose severe penalties than a regular offence.

The case for R v Hawkins (1989) 45 justified this by claiming the amount “obtained” illegally showed how much the offender was ready to flout the law and their purposes.

• The period over which the offence occurred

Where the offence was in an aggravated form, the offender committed the crime continuously over a period. In such a case, the Court will issue more severe penalties. Some references to this R v Woodman [2001] NSWCCA 310.

• The Motive for the offence

The possibility of a “greater good” or preventing a catastrophic situation can reduce the sentencing of an offence.

However, the Court will issue severe punishments if greed, hatred or other sentiment was the Motive for the offence.

• Level of Execution of the offence

In some instances, the Court may impose lesser penalties for offences that occurred out of lucky or opportunistic situations. However, if the crime was an intentionally long-planned act, the Court will impose higher penalties.

• Breach of Trust

In such cases, the offender was contracted to fulfil a particular role or activity and contradicts it in actions constituting fraud. As referenced in R v Murtaza [2001] NSWCCA 336, a breach of trust can amount to an aggravating circumstance for Fraud offences.

Some examples include; Employer who defrauds their employee, a solicitor who appropriates trust funds, a teacher or nannies who indecently deals with their subject.

Fraud and Larceny offences

Larceny is the offence of taking, tricking or defrauding a person or group of their property. It matters less, what the value of the property or the value that was stolen. However, Larceny is a stealing offence with the absence of violence.

The maximum penalty for Larceny offences is five years imprisonment, or two years if dealt with in the Local Court.

• Other stealing related offences

Embezzlement is an unlawful appropriation of property or money by someone to whom it was entrusted, such as an employee.

The term "obtaining" applies when the property or money is not physically taken but is taken in other ways.

Extortion is another form of blackmail and involves threats to obtain the property of another person. Each of these offences has a maximum penalty of 10 years in jail term.

While all of these events are related to stealing offences, they have separate legislation and punishments under the law.

Punishments for Stealing and Larceny offences

The offence of Larceny is the same under the Crimes Act 1900 (NSW). It means that irrespective of;

• The nature of the crime, or
• The value of the stolen property, or,
• Whether the accused had any special interests in the stolen item.

The incident will be considered the same in Court.

Furthermore, the offence of Larceny has prescribed punishments in the

If the Court convicts a person of Larceny, except for defined cases, it will impose penalties up to imprisonment for five years.

Forgery offences

People are guilty of this offence if they manipulate or falsify a document to mislead a person or group. Under Section 254 of the Act, a person who manipulates or causes a person to a financial disadvantage due to a wrong document passed as genuine is guilty of this offence.

Such offence incurs a penalty of 10 years imprisonment.

The offence of forgery also includes;

• Possession of false document,
• Making or possession of equipment etc. for making false documents,
• Using False or misleading applications.

Identity offences

It is an offence to falsify your documents or those relating to another person to commit an indictable crime.

A person guilty of such an offence is liable to a ten years imprisonment term.

Possession of identification

It is an offence under Section 192K to possess an ID or hold an Identification document to commit or help in a crime. Such offences are handled as indictable crimes in a District Court and attract imprisonment terms of 7 years.

Possessing the equipment used to falsify or manipulate identification documents

The Crimes Act prohibits all private individuals from dealing with a legal identification document. It also includes all those who;

• Possess the equipment, materials or other instruments used to make the IDs.
• Attempts or intends to use the Identity document to commit or facilitate the commission of the offence.

The Crimes Act of NSW prescribes punishments of 3 years imprisonment term

Money Laundering

The offence of money laundering is defined under Section 193B of the Crimes Act. A person is guilty of the Act if they deal with the proceeds of crime, and;

• They knew it was the proceeds of crime.
• Intended to hide or protect such proceeds of crime.

It is handled as an indictable offence in a District court and attracts up to 20 years imprisonment.

If the person only received such proceeds as a gift and deals with it knowing it to be from a crime, the Court stipulates a maximum penalty of 20 years imprisonment.

If the offender was unsure or reckless about whether it was the proceed of a crime is guilty of an offence. The law stipulates penalties of up to a ten years prison term.

What happens if you receive a charge for a fraud offence?

If you get a court summons for a charge of fraud, the best thing to do is to contact your solicitor or lawyer. And your legal representative must be experienced Crime Laws. They will advise you on the best plea, including pleading for lesser sentencing (if you are found guilty).

Will a Fraud offence show up on my Nationally Coordinated Criminal History Check result?

The offence for Fraud will be disclosed on a police check certificate.

You can obtain your Nationally Coordinated Criminal History Check online via the Australian National Character Check (ANCC) website.

The application and informed consent form can be completed online and the results are dispatched via email.

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