What is Fraud/Obtain benefit by Deception ?
A person who, by deception, dishonestly obtains property belonging to someone else, or obtains a financial advantage or causes a financial disadvantage, is guilty of fraud. Section 192E of the Crimes Act 1900 (NSW) covers the majority of conduct falling under the general umbrella of “fraud”.
The offence is an indictable offence, which means that it may be heard in the higher courts; however, it is often also dealt with in Local Court. The charge will be in the limits of the Magistrates’ Court if: (1) The amount that is the subject of the financial advantage does not exceed $100,000 (2) The Magistrate considers the charge appropriate to be dealt with summarily; and (3) The accused consents– (this is something you should seek advice from an expert criminal lawyer on).
The nature and penalties of white collar crime/the offence were considered in the case of R v Brown (Unerp), 1/8/94, NSWCCA. In that case it was said that it should be noted that the appropriate sentence involves the consideration of a number of factors, and general deterrence, although an important consideration, is only one of those factors. Additionally, there is no general rule or principle stating that in relation to “white collar crime offences” a full-time prison sentence is inevitable.
In addition to the general factors to be considered on sentence, the following factors will often be particularly relevant:
The amount of money involved
- The length of time of the fraud
- Whether the offender occupied a position of trust when the fraud was committed.
- Whether there was any sophistication in the method employed to defraud
- The motive behind the offending.
The offence of is contained in section 192E of the Crimes Act 1900 (NSW) which states: A person who, by any deception, dishonestly:
“Obtains property belonging to another, or
Obtains any financial advantage or causes any financial disadvantage,
Is guilty of the offence of fraud.
Deception is defined as:
any deception, by words or other conduct, as to fact or as to law, including:
A deception as to the intentions of the person using the deception or any other person, or
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.
Dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.
A person “obtains property” if:
The person obtains ownership, possession or control of the property for himself or herself or for another person, or
The person enables ownership, possession or control of the property to be retained by himself or herself or 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.
“Obtain” a financial advantage includes:
Obtain a financial advantage for oneself or for another person, and
Induce a third person to do something that results in oneself or another person obtaining a financial advantage, and
Keep a financial advantage that one has, whether the financial advantage is permanent or temporary.
Cause a financial disadvantage means:
Cause a financial disadvantage to another person, or
Induce a third person to do something that results in another person suffering a financial disadvantage, whether the financial disadvantage is permanent or temporary.”
What must the prosecution prove?
Since obtain a benefit by deception is a criminal offence, the burden of proof lies on the Prosecution.
The prosecution must prove the Accused’s guilt beyond reasonable doubt.
That is a high standard of proof that the prosecution must achieve before someone can be convicted of obtain a benefit by deception.
To establish obtain a benefit by deception the prosecution must prove each of the following matters beyond reasonable doubt:
- That you, by deception:
- Obtained a financial advantage; or
- Caused a financial disadvantage; or
- Obtained property belonging to another; and
- the obtaining of the property, advantage, or disadvantage was dishonest.
If you are charged with the offence of obtain a benefit by deception what are your options?
National Criminal Lawyers have been successful in defending a number of obtain a benefit by deception charges where the prosecution could not establish each of the elements of obtain a benefit by deception. We have also achieved a number of non-convictions for obtain a benefit by deception charges.
NCL offer the following options for those who have been charged with obtain a benefit by deception:
- We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”);
- NCL will Plead Not Guilty and go to hearing/trial;
- Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing); and/or
- Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf seeking a non-conviction by the Court.
Fequently Asked Questions
If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.
Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.
Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining a non-conviction or section 10.
Obtain benefit by deception can be punished with a prison sentence of up to 2 years (if heard in the Local Court) or up to 10 years (If heard in the District Court).
Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.
If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.
A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.
National Criminal Lawyers have defended thousands of people charged with obtain a benefit by deception and are experts at these hearings.
Some of the possible defences available for those charged with obtain a benefit by deception can include:
- That you were not dishonest;
- That there was no deception;
- That you did not obtain any advantage or cause any disadvantage
- If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”;
- If your actions were necessary to prevent a greater harm from occurring, you may have the defence of “Necessity”;
- If you were defending yourself or another OR yours or another’s property you may have a Defence of “Self-Defence”
The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green  HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:
“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.
For obtain benefit by deception 46% of offenders received a custodial sentence whereas 33% received a good behaviour bond.
In NSW, a court can impose any of the following penalties for a obtain a benefit by deception charge.
- Prison sentence
- Home Detention
- Intensive correction order (previously periodic detention)
- Suspended sentence
- Community service order (CSO)
- Good behaviour bond
- Section 10
However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:
- Full time Imprisonment
- New ICO (ICO) with a home detention condition available
- New Community Correction Order (CCO)
- New Conditional release Order (CRO)
Fake Customer Accounts
One of our Senior Defence lawyer represented a 21-year-old man who was charged with obtaining benefit by deception. The man had been working together with others who were creating fake customer accounts to obtain commissions. In Court our office submitted that his client’s criminality was less apparent than other not dissimilar cases as in this case their supervisor was the one who ensured they participated in the scheme. Moreover, it was successfully argued that he continued the criminal behaviour whilst acting under a degree of duress and necessity in that he was told that he would lose his job if they ceased the corrupt operation. In Court our client successfully argued that this was a special circumstances case and this man despite the massive mistake should be allowed to proceed with his life. Moreover, evidence was given that the client plead guilty and made admissions early, obtained references and wrote a heartfelt letter of apology. The client had also made attempts on our advice to re-pay the full amount back to the victims. The Magistrate after a very long deliberation agreed with our lawyer’s submissions and dismissed the charges pursuant to section 10 meaning no conviction was recorded.
Our Senior Defence lawyer represented a 46-year-old woman who was charged with five counts of obtaining benefit by deception. The total amount when taken together equalled the sum of $79,598.51. The client had been using Westpac cheques from her own account which were made out as cash payable in moderate to large sums. The cheques (23 in total) were used to defraud western union and the Australian post office. The client did this knowing it takes some days to have the cheques processed/cleared. At all material times the client knew that there was not enough money in the Westpac bank to clear the false cheques.
Prior to Court Our Senior Lawyer received instructions from the client to the effect that she was guilty and as such decided to write representations to the police to plea bargain/reduce the charges. In written submissions Our Senior Lawyer put to the prosecution an offer that if the client were to plead guilty to only two charges and not five the matter could be dealt with in a way which would save court time and witnesses having to come to court. The prosecution eventually agreed to the plea bargain and thus the five charges became only two. The fact sheet was then amended and all prejudicial parts (except for the two charges) were removed. Upon this occurring the matter was dealt with by way of an early Guilty Plea. Our focus then became keeping the client out of full time custody. In Court Our Senior Lawyer made submissions that this was a case where a community-based sentence would be of best value to the victims as sending her to full time gaol would result in a delay in repaying back the amounts owed. It was further put that it was not a very sophisticated crime in that she was always going to be caught given she used her own name and cheques. Our Solicitor finally ask the Court if the offender could have the benefit of an assessment for the community based Intensive Corrections Order (ICO). The Judge agreed to the assessment and the client was assessed as suitable.
No Jail for over $500,000 Fraud
The team at National Criminal Lawyers® is not only proud but grateful to have received a result recently that has not been ever seen.
Our client was charged with more than 100 offences of dishonestly obtain financial advantage by deception and deal with proceeds of crime in the amount of more than $500,000.
These offences carry a maximum penalty of 10 and 5 years imprisonment respectively.
The allegations were that our client dishonestly obtained donations from her employer and then sold the donated items at Sydney markets for cash. She retained the cash payments in her personal name. In addition, as an employee of the organisation, it was alleged that our client’s role consisted of liaising with external stakeholders persuading and assist with the obtaining of the donations.
How these cases are generally dealt with
Given the amount alleged to have been frauded and the significant number of charges, the superior Courts have often said that a full-time custody sentence must be imposed. There are of course exceptions, however these exceptions do not ordinarily succeed in favour of the offender.
What did our lawyers do?
Prior to Court, our lawyers at National Criminal Lawyers wrote representations to the NSW police to plea bargain/reduce the charges. In our written submissions to the police, we proposed an offer to the prosecution that if our client were to plead guilty, the matter should be kept in the Local Court rather than the District Court with some of the offences placed on Form 1.
After many discussions the prosecution ultimately agreed with our representations, reducing the offences to nearly half the original charges, remaining with 55 offices and the matter was kept in the Local Court.
Nevertheless, our team of lawyers at National Criminal Lawyers did not stop there.
On the day of sentencing, we submitted that instead of a full-time custodial sentence which is generally common in this time of offence of this magnitude, an Intensive Correction Order (ICO) should be imposed instead, taking into account the subjective circumstances of our client and that she had already served some time in custody having been bail refused before our office successfully got our client bail.
The prosecution relied on Criminal Court of Appeal Cases, one of which was Scott v DPP (NSW)  NSWCA 60 which involved an offender who had a significant criminal history in relation to dishonestly offences. Our lawyers submitted to the Court that our client’s case is clearly distinguishable; in that our client had no prior criminal history and was otherwise a person of good character.
The prosecution also fought hard and relied a further case of Itaoui v R  NSWCCA 273. Our rebuttal to this case related to the level of sophistication of the offending and breach of trust involved in Itaoui was much higher than the present matter. For in Itaoui the offender was trusted implicitly with a trust account. But in the present case our client’s role was limited to their role as an employee without any additional relationship of trust in effect.
Further we submitted that Itaoui was decided under a different sentencing regime where the only alternative to full time custody was a suspended sentence (which has now been repealed). But in our client’s case the Court had the option available at sentencing our client to an order that a period of imprisonment be served by way of ICO which provides an alternative to full time imprisonment and is capable of incorporating a very real and signification degree of punishment and deterrence to others.
Our lawyers further submitted that the length of the indicative sentence does not limit the Court’s power to order that a period of imprisonment be served by way of ICO. In addition, our lawyers also addressed that a home detention condition should not be imposed as part of our client’s ICO unless an assessment report relating to the imposition of such a condition is before the Court.
The Court ultimately agreed with our lawyers and granted our client an ICO. Not only does this ensure that our client can seek treatment in the community, but it also means that our client can start a fresh new beginning and not spend any time in full time custody.
Why National Criminal Lawyers?
There are three reasons to choose National Criminal Lawyers:
1. Your best chance to get the result you’re after
We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.
2. How a Senior Defence Lawyer Can Help You Deal With Criminal Charges
No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.
3. National Criminal Lawyers are the best defenders of your rights
At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.
If you have been charged with any driving offence our Team and National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.
Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.