Fraud (obtain a benefit by deception) – s 192E of the Crimes Act 1900

Definitions of fraud broaden an understanding of the offence. They are defined in the Crimes Act 1900 as follows:

• s 192B – Deception.
  • This may be words or conduct that convey the intentions of the person (or other person) using the deception. It can be according to fact or to law; or
  • It may be where an unauthorised person causes any electronic device (eg. computer, machine etc) to make an unauthorised response.
  • The deception is either intentional or reckless.
• s 4B – Dishonesty.
  • This means ‘according to the standards of ordinary people and known by the defendant to dishonest according to the standards of ordinary people.
  • Dishonesty may be present even where a person is willing to pay for the property.
• s 192C – Obtaining property belonging to another.
  • This is where a person unlawfully obtains ownership, possession or control of a property for him or herself, or for another person; or
  • The person retains ownership, possession or control of the property; or enables such retention by another person; or
  • 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.

NB: There must be an intention to permanently deprive the other person of the property.

• s 192D(1) – Obtaining financial advantage
  • obtain a financial benefit for yourself or someone else, and
  • persuade another person to get a financial advantage for oneself or another person, and
  • keeping the financial advantage, whether permanent or temporary. *
• s 192D(2)  causing a financial disadvantage.
  • Cause a financial disadvantage to another person or
  • persuade another person to do something that results in a financial disadvantage to another person, whether permanent or temporary.

NB: *whether ‘permanent or temporary’ means that an intention to permanently deprive the other person of the property need not be present.

The maximum penalty for a section 192E (fraud) offence is

• 10 years imprisonment.

Please note that this penalty is reserved for the most serious cases only.

This option is recommended only where you accept that by a deception, you acted dishonestly, and

• obtained property belonging to another person; or
• obtained a financial advantage; or
• caused a person to suffer a financial disadvantage.

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.

What possible outcomes exist?

• A non-conviction via a section 10 – asking the court for leniency
  • Leniency is where the court has found you guilty, but has exercised a discretion not to convict you. Therefore, you will avoid:
    • a fine or a penalty.
    • a conviction
• Conditional release order “CRO” (with or without conviction)
  • This is usually subject to a period of good behaviour.
  • If an offence is committed during the period of the order, a court may resentence you for the offence committed.
  • Statistics show that less than 2% of offenders receive this outcome.
• Community Corrections Orders (“CCO”)
  • An offender is placed under the supervision of Community Corrections.
  • Example of a CCO is performing service within the community, or being required to undertake mental health treatment.
• Intensive Corrections Order (“ICO”)
  • This is where a term of imprisonment can be served in the community.
• Full-time imprisonment
  • Served in a correctional facility.

To prove this offence the Prosecution must establish beyond a reasonable doubt that by a deception, you acted dishonestly, and

• obtained property belonging to another person; or
• obtained a financial advantage; or
• caused a person to suffer a financial disadvantage.

If the Prosecution cannot prove the offence was committed beyond a reasonable doubt, then the court must find you not guilty.

NB: An alternative verdict to the charge of fraud is a conviction of larceny.

Defences

• There was no deception or dishonesty involved.
• Property belonging to another person was not obtained.
• A financial advantage was not obtained.
• A financial disadvantage was not caused.
• A Claim of right:
  • This is where you genuinely and honestly believed you had a claim of right or legal entitlement to the property.
  • The belief must be that you are entitled to the entire property as opposed to segments of it.
• Duress: circumstances or the threats of another compelled you to act in the manner you had.