Australia: The offence of fraud in NSW: The law, defences, penalties and sentencing considerations

A 58-year old former employee of a sports club in Southern New South Wales has been charged with fraud after allegedly obtaining more than $1.1 million dishonestly and by a deception between December 2020 and January 2021.

It has been alleged the financial officer of Mulwala Water Ski club, located the New South Wales / Victorian border, made 27 transfers from the club's bank accounts to offshore accounts that she controlled.

The club reported the matter to police after allegedly detecting accounting anomalies, and police from the Murray River Police District commenced an investigation.

The woman, who resides in Victoria, was arrested and conveyed to Mulwala Police Station where she was charged with 27 counts of fraud under section 192E of the Crimes Act 1900 (NSW).

She was granted conditional bail and is scheduled to appear in Corowa Local Court on 17 February 2021.

Section 192E of the Crimes Act 1900 (NSW) makes it a criminal offence to dishonestly obtain property belonging to another, or obtain any financial advantage or cause a financial disadvantage to another, where this is done by any deception.

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.

The maximum penalty for the offence is 10 years in prison when the matter is referred to the District Court, or 2 years if it remains in the Local Court.

However, the sentencing magistrate or judge is at liberty to impose any of a number of other penalties, including:

• Section 10 Dismissal
• Conditional Release Order
• Fine
• Community Correction Order
• Intensive Correction Order
• A shorter prison term

Section 4B of the Crimes Act makes clear that whether the conduct amounts to 'dishonesty  is to be determined by the trier of fact - whether the magistrate in the Local Court or the jury or judge sitting alone in a higher court - according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.

Section 192B of the Crimes Act defines 'deception' as any intentional or reckless  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.

What are the defences to fraud charges?

In addition to having to prove the essential elements of fraud beyond reasonable doubt, the prosecution is also required to disprove any legal defence that is validly raised on the evidence.

It must disprove any such defence beyond a reasonable doubt.

The most common legal defence to fraud charges is duress, which is where:

1. The defendant received a threat of death or serious injury to him or herself, a member of his or her family or another person he or she might reasonably feel responsible for,
2. The threat was of such a nature that a person of ordinary strength and will, of the same sex and strength as the defendant would have yielded to it, and
3. The defendant committed the act which would otherwise constitute the offence as a result.

Other defences to fraud include self-defence and necessity.

If a person is guilty of a criminal offence in New South Wales, the court is required to consider a range of potentially relevant 'aggravating' and 'mitigating' factors when deciding the appropriate penalty.

Aggravating factors are those which make the particular offence more serious, while mitigating factors may be relied upon to achieve a more lenient penalty than that which would otherwise apply.

These factors are listed in section 21A of the Crimes (Sentencing Procedure) Act 1999 are:

(a)  the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work,

(b)  the offence involved the actual or threatened use of violence,

(c)  the offence involved the actual or threatened use of a weapon,

(ca)  the offence involved the actual or threatened use of explosives or a chemical or biological agent,

(cb)  the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance,

(d)  the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),

(e)  the offence was committed in company,

(ea)  the offence was committed in the presence of a child under 18 years of age,

(eb)  the offence was committed in the home of the victim or any other person,

(f)  the offence involved gratuitous cruelty,

(g)  the injury, emotional harm, loss or damage caused by the offence was substantial,

(h)  the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),

(i)  the offence was committed without regard for public safety,

(ia)  the actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth),

(ib)  the offence involved a grave risk of death to another person or persons,

(j)  the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,

(k)  the offender abused a position of trust or authority in relation to the victim,

(l)  the victim was vulnerable, for example, because the victim was very young or very old or had a disability, because of the geographical isolation of the victim or because of the victim's occupation (such as a person working at a hospital (other than a health worker), taxi driver, bus driver or other public transport worker, bank teller or service station attendant),

(m)  the offence involved multiple victims or a series of criminal acts,

(n)  the offence was part of a planned or organised criminal activity,

(o)  the offence was committed for financial gain,

(p)  without limiting paragraph (ea), the offence was a prescribed traffic offence and was committed while a child under 16 years of age was a passenger in the offender's vehicle.

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(a)  the injury, emotional harm, loss or damage caused by the offence was not substantial,

(b)  the offence was not part of a planned or organised criminal activity,

(c)  the offender was provoked by the victim,

(d)  the offender was acting under duress,

(e)  the offender does not have any record (or any significant record) of previous convictions,

(f)  the offender was a person of good character,

(g)  the offender is unlikely to re-offend,

(h)  the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,

(i)  the remorse shown by the offender for the offence, but only if:

(i)  the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)  the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

(j)  the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability,

(k)  a plea of guilty by the offender (as provided by section 22 or Division 1A),

(l)  the degree of pre-trial disclosure by the defence (as provided by section 22A),

(m)  assistance by the offender to law enforcement authorities (as provided by section 23),

(n)  an offer to plead guilty to a different offence where the offer is not accepted, the offender did not plead guilty to the offence and the offender is subsequently found guilty of that offence or a reasonably equivalent offence (this circumstance, among others, is provided for by section 25E (1)).

When it comes to fraud offences, the courts have found that the most significant sentencing considerations when assessing the seriousness of the specific offending conduct are:

1. The amount of money involved and whether the loss is irretrievable:

Repayment of the debt can be a significant mitigating factor on sentencing.

2. The length of time over which the offences took place:

Protracted offending will generally be considered as more serious than that which occurred over a short period of time.

3.The motive for the crime:

Offending may be seen as more serious where it is solely for greed rather than need. Examples of need may be a desperate financial situation or addiction.

4.The degree of planning and sophistication:

Well-planned and executed fraudulent schemes may be seen as more serious than simplistic and opportunistic ones.

5.Breach of trust:

Offending may be seen as more serious when a person is in a position of trust, such as where he or she was given the responsibility for managing accounts.

Other important considerations include the impact of the offending conduct on public confidence in the integrity of the defrauded entity or person, as well as the impact on the victim or victims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.