Fraud

Criminal Law

In New South Wales, fraud offences are governed by Part 4AA of the Crimes Act 1900. These offences are considered very serious.

In New South Wales, the offence of fraud is committed where a person obtains property from another by a dishonest act of deception. It is important to note that a person does not commit the offence of fraud unless the deception was intentional or reckless.

Fraud covers many areas and there are too many to go into detail.

The following features have been identified as influencing the assessment of the gravity of the crime of fraud:

The amount of money involved:

(R v Hawkins (1989) 45 A Crim R 430,
R v Mungomery (2004) 151 A Crim R 376 at [40],
R v Woodman [2001] NSWCCA 310, R v Finnie [2002] NSWCCA 533 at [59]) and

Whether the loss is irretrievable:

R v Todorovic [2008] NSWCCA 49 at [19]

The length of time over which the offences are committed:

R v Pont (2000) 121 A Crim R 302 at [74], [75],
R v Mungomery (2004) 151 A Crim R 376 at [40]

The motive for the crime:

R v Mears (1991) 53 A Crim R 141 at 145,
R v Hill [2004] NSWCCA 257 at [6],
R v Woodman [2001] NSWCCA 310 at [29].

The degree of planning and sophistication:

R v Mille (unrep, 1/5/98, NSWCCA),
R v Pont (2000) 121 A Crim R 302 at [43]–[44],
R v Murtaza [2001] NSWCCA 336 at [15],
Stevens v R [2009] NSWCCA 260 at [59], [78].

An accompanying breach of trust:

R v El-Rashid (unrep, 7/4/95, NSWCCA),
R v Pont (2000) 121 A Crim R 302,
R v Hawkins (1989) 45 A Crim R 430.

Section 134.1(1) – Obtaining property by deception

A person is taken to have obtained property if they:

take ownership, possession, or control of it for themselves or another person; or

enable ownership, possession, or control of it for themselves; or

induce someone to pass ownership, possession, or control of it to another person; or

induce someone to retain ownership, possession, or control of it.

The prosecution must prove beyond a reasonable doubt that the person’s actions were deliberately deceptive and that they resulted in the person obtaining property that would otherwise belong to the Commonwealth.

The defendant is not guilty if the prosecution is unable to prove all of those elements.

Section 134.2(1) of the Act – Obtaining financial advantage by deception

The prosecution must prove beyond a reasonable doubt that the person’s actions were deliberately deceptive and that they resulted in the person gaining a financial advantage from the Commonwealth.

A less serious alternative to this offence is section 135.2(1) – obtaining financial advantage. This carries a maximum penalty of 12 months imprisonment. If the prosecution case against you appears strong, a defence lawyer is likely to attempt to have the less serious offence substituted, in a bid to reduce the maximum sentence from 10 years to a year.

Section 135.4(3) – Conspiracy to defraud

States that a person is guilty of this offence if the person conspired with another person with the intention of dishonestly causing a loss to a third person, and the third person was a Commonwealth entity.

Subsection 135.4(4) states that:

the prosecution does not have to prove that the person knew the defrauded party was a Commonwealth entity. The person and their co-offender may share joint liability.

Section 135.2(1) of the Act – Obtaining financial advantage

As stated previously, this section carries a much lower maximum penalty of 12 months rather than 10 years.

A person is guilty of obtaining a financial advantage if the prosecution can prove beyond reasonable doubt that the person engaged in conduct as a result of which he or she obtained a financial advantage for himself or herself from another person, and the person knew or believed he or she was not eligible to receive that financial advantage, and the other person was a Commonwealth entity.

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