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Offences – Fraud

What the prosecution must prove.

The prosecution must prove beyond reasonable doubt:

1. An act of:

• Using another’s property.

• Obtaining another’s property.

• Gaining a benefit or advantage.

• Causing a financial detriment to another.

2. That the act was done dishonestly.

What it means.

To prove dishonesty the prosecution must prove that what was done was dishonest by the standards of ordinary honest people.

The offence does not require proof of a dishonest intention. The intention of the defendant is irrelevant.

There is one exception. The offence of Fraud extends to leaving when an on the spot payment is required for goods or service with an intention not to make payment. In that case the prosecution must prove an actual intention.

The offence can apply to property owned by a defendant or lawfully in a defendant’s possession if another person has an interest in the property.

The reference to a benefit or advantage is not limited to a direct financial benefit.

A dishonest act that results in a financial loss to another can amount to an offence of Fraud even though there was no benefit or intention to obtain a benefit by a defendant. Publishing knowingly false information about the safety of a product damaging a business would amount to a Fraud.

An act in relation to property is not dishonest if a person does not at the time know the identity of the owner and believes on reasonable grounds that the owner cannot be discovered though reasonable steps. An example would be a $50.00 found by a cleaner after a stadium concert.

The available defences.

Claim of Right.

The usual penalties.

The maximum penalty for the offence of Fraud is 5 years imprisonment.

The maximum penalty is increased to 14 years imprisonment if it is charged and proved beyond reasonable doubt that the offence was committed:

• As the director of a company.

• As an employee against an employer.

• In relation to property held on trust,

• In relation to property, an advantage or a detriment valued at $30,000.00 or more but less than $100,000.00.

The maximum penalty is increased to 20 years imprisonment if it is charged and proved beyond reasonable doubt that the offence was committed:

• In relation to property, an advantage or a detriment valued at $100,000.00 or more.

• In the course of carrying on the business of committing the fraud.

The maximum penalty is a poor numerical indicator of sentences usually imposed.  It plays a very important role in setting the seriousness of an offence. The maximum penalty is hardly ever imposed.

Penalties for the offence of Fraud vary widely from bonds and fines to lengthy sentences of imprisonment for sophisticated fraud involving large sums of money. The courts are particularly harsh on employees who commit Fraud during the course of their employment.

Factors that affect the appropriate penalty include the value of the property or benefit, the loss to another, the duration of a Fraud, and the sophistication and complexity of any scheme.

It is important to seek expert advice before dealing with a criminal offence of Fraud.

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