The general principles of the nature of white collar crimes is so varied, there is no rule that all cases of white collar crime must attract a full-time custodial sentence: R v Halabi. However, where the offence can be categorised as “serious white collar crime” substantial full-time custodial sentences must be imposed.
What constitutes “serious white collar crimes”?
This will normally depend upon the amount of money taken; the level of sophistication or planning involved; the position of the person; the accompanying the breach of trust; where there is a multiplicity of offences or dishonest acts; and the period of time over which the offences took place.
Fraud and related offences are encapsulated under Division 2 of the Crimes Act 1900 (NSW). The considerations of general deterrence are of particular importance in sentencing for crimes of this nature. This is because of the breaches of trust are usually only able to be committed because of the good character of the person who has been placed in a position of trust.
A leading criminal lawyer will fully understand the complexities of fraud and related offences. And understand the importance to maintain public confidence and the appropriate sentences reflecting both personal and general deterrence.
Division 2 of the Crimes Act 1900 (NSW)
Offences relating to fraud under Division 2 of the Crimes Act 1900 (NSW) are broken down in the different provisions below.
Section 192E
A person who, by any deception, dishonestly –
(a) obtains property belonging to another, or
(b) obtains any financial advantage or causes any financial advantage,
is guilty of the offence of fraud where the maximum penalty is imprisonment for 10 years.
The principal fraud offence is contained in clause 192E which makes it an offence for a person by any deception to dishonestly obtain another’s property, obtain any financial advantage or cause any financial disadvantage. This offence carries a maximum penalty of 10 years imprisonment, this one provision clearly covers most fraud cases and ensures that only people that have been deceptive and dishonest will be prosecuted.
The definition of dishonest has been adopted in a way that the mental element of dishonesty means dishonest according to the standard of ordinary people and known by the defendant to be dishonest according to those standards.
The essential ingredient of the offence that the cause of the payment of the money or the handing over of the valuable thing was the deception used by the accused: R v How (1989). There also must be a sufficient connection between the deception and the obtaining, and the deception must be an operative cause of the obtaining.
Section 192F
A person who dishonestly destroys or conceals any accounting record with the intention of –
(a) obtaining property belonging to another, or
(b) obtaining a financial advantage or causing a financial disadvantage,
is guilty of an offence where the maximum penalty is imprisonment for 5 years.
The offence in section 192F will ensure that accounting records cannot be deleted or concealed on a computer in order to avoid prosecution.
Section 192G
A person who dishonestly makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) that is false or misleading in a material particular with the intention of –
(a) obtaining property belonging to another, or
(b) obtaining a financial advantage or causing a financial disadvantage,
is guilty of an offence where the maximum penalty is imprisonment for 5 years.
This provision makes it an offence for a person to dishonestly make, publish or concur in making or publishing any statement that is false or misleading in a material way, with the intention of obtaining another’s property, or obtaining a financial advantage or causing a financial disadvantage.
The term material in section 192G provides that the false particular be of moment or significance and not trivial or inconsequential. A stale will be false in a material particular if it is relevant to the purpose for which it is made.
Section 192H
An officer of an organisation who, with the intention of deceiving members or creditors of the organisation about its affairs, dishonestly makes or publishes, or concurs in making or publishing, a statement that to his or her knowledge is or may be false or misleading in a material particular is guilty of an offence where the maximum penalty is imprisonment for 7 years.
This section applies to officers of organisations who make false or misleading statements with the intention of deceiving the members or creditors of that organisation about its affairs.
Our criminal law specialists have the expertise required in dealing with these matters, no matter the level of complexity.