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There are numerous offences relating to fraud, largely in response to a wide range of forgery and other fraudulent activities which exist. Some of the most common fraud offences in NSW are Obtaining Property Belonging to Another by Deception under section 192E(1)(a) of the Crimes Act 1900 (NSW), Obtaining a Financial Advantage or Causing a Financial Advantage by Deception under section 192E(1)(b) of the Crimes Act 1900 (NSW) as well as offences of Making a False Document under section 253 of the Crimes Act 1900 (NSW), Using a False Document under section 254 of the Crimes Act 1900 (NSW), Possessing a False Document under section 255 of the Crimes Act 1900 (NSW) and Make or Possess Equipment for Making False Document with Intent to Commit Forgery under section 256(1) of the Crimes Act 1900 (NSW). Each of these offences carries a maximum sentence of 10 years imprisonment. With fraud and forgery being prevalent in our society, how do courts deal with persons who have pleaded guilty or have been found guilty of fraud?
What is Fraud?
Although each criminal offence pertaining to fraudulent conduct contains within it the necessary elements which each need to be proved beyond reasonable doubt, fraud can be generally described as an act undertaken with the intention of obtaining an unauthorised or unlawful benefit (whether financial or otherwise) and/or to cause another to suffer a loss, by using deception or other dishonest means. To see an example of a specific fraud offence, check out our blog post here.
How to courts determine sentences in fraud matters?
Determining sentences in any matter is not the easiest of tasks and given the complexities of fraud matters and the many ways in which such matters manifest arguably makes the task of a sentencing Judge or Magistrate all the more difficult. As a starting point, courts will look at the elements or ingredients of each offence as well as its applicable maximum penalty. Thereafter, other relevant sentencing considerations such as a determination of aggravating circumstances (what makes an offence more serious) and mitigating circumstances (what makes an offence less serious) is also undertaken to determine the objective seriousness of a matter. For instance, although the offence of Obtaining a Financial Advantage or Causing a Financial Advantage by Deception under section 192E(1)(b) of the Crimes Act 1900 (NSW) carries a maximum sentence of 10 years imprisonment, an offender who fraudulently obtains $1000.00 will not be treated in the same manner as an offender who fraudulently obtains $100,000.00. Importantly, the individual characteristics and circumstances of an offender also need to be carefully considered.
How do courts determine the objective seriousness of fraud matters?
Apart from considering the elements of the offence as well as the applicable maximum penalties, courts routinely adopt what is often referred to as factors of universal application to fraud matters. Although each offence may have some differences and there are different maximum penalties applicable to each offence, the below features have been identified by the courts in determining the objective seriousness of fraud offences.
- The amount of money involved in the fraudulent conduct and whether the loss is irretrievable. The more money involved in a fraud, the more serious the offence will be, particularly if the monies fraudulently obtained cannot or will not ever be recouped or re-paid.
- The length of time over which the fraud offences were committed. The period of time over which fraud offences were committed is relevant to determining the level of criminality involved. For instance, a single instance of conduct could be viewed as being impulsive. A long history, or pattern of fraudulent behaviour spanning several months or in some cases years, involving numerous fraudulent transactions will likely be assessed as being more serious owing to the conduct being persistent and systematic in nature.
- The motive for the crime. The reasons why a fraud offence was committed is relevant to determining the criminality involved in the offending and therefore the objective seriousness of the offence. For instance, an offender who commits a fraud owing to dire financial circumstances which occurred beyond their control simply to try and make ends meet will be treated very differently to an offender who engages in brazen greed such as spending fraudulently obtained monies on designer goods, expensive cars and holidays.
- The level of planning and sophistication in the fraudulent conduct or scheme. An act of fraud which may have been opportunistic or impulsive will be treated differently to an offender who has undertaken a significant level of planning and sophistication, such as creating numerous identities, creating false invoices, numerous bank accounts and manipulating computing and other records to not only affect the fraudulent conduct, but to also seek to avoid detection.
Whether there was a breach of trust involved in the fraud. A breach of trust involves a direct contravention of what the offender was engaged to do. For example, a company bookkeeper hired to ensure that a company’s finances are correctly accounted for who engages in fraudulent conduct to misappropriate monies for their own purposes will have breached their employer’s trust in engaging in such fraudulent conduct. Breaches of trust are considered to be significant factors in assessing the seriousness of fraudulent conduct.
Is deterrence a relevant factor in fraud offences?
Courts have routinely stated that fraud, or white collar crime is not a victimless crime, causing loss to victims directly affected by the conduct as well as the community at large by damaging the integrity of, and creating an inequitable playing field in the market. Section 3A(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) states that one of the purposes of sentencing is to prevent crime by deterring the offender and others from committing similar offences. Courts have consistently held that deterrence is a very important factor in sentencing offenders for fraud matters. Fraud is prevalent and often difficult to detect and these are some of the reasons why courts place a significant emphasis on deterrence when sentencing offenders for fraud.
What are the penalties available for fraud offences in NSW?
Given the variety of fraud offences, and the circumstances surrounding not only the factors determining the objective seriousness of each offence, but also the personal characteristics of an offender, the applicable penalties for fraud can vary significantly. Courts have the power to dismiss charges without conviction pursuant to a Conditional Release Order (CRO) or otherwise for minor examples of an offence. Thereafter, upon conviction for offences of fraud, courts can impose Conditional Release Orders (CRO) with conviction, fines, place offenders on Community Correction Orders (CCO) or in appropriate cases impose sentences of imprisonment either by way of an Intensive Correction Order (ICO) or full-time imprisonment.
Practical implications.
Fraud offences are considered to be serious offences and the risk of a prison sentence often looms large. It is important that the circumstances and evidence of each case be carefully examined by an experienced criminal defence lawyer. It is therefore important that you consult with an experienced criminal defence lawyer as soon as possible after you have been charged with any charges relating to fraud.
The content contained within this guide is expressed as a general guide as to this area of law and is not intended to contain legal advice specific to an individual’s case. If you, or someone you know has been charged with a fraud offence and requires legal advice, do not hesitate to contact Australian Lawyers and Advocates to discuss any criminal law matters further.
