What is Obtaining a Financial Advantage?

Obtaining a financial advantage can be prosecuted under section 192E of the Crimes Act 1900 (NSW) and, in certain Commonwealth matters, under section 134.2 of the Criminal Code Act 1995 (Cth).

Under NSW law, the offence generally involves using deception dishonestly to:

• obtain property belonging to another person;
• obtain a financial advantage; or
• cause another person to suffer a financial disadvantage.

Under Commonwealth law, the offence may arise where a person, by deception, dishonestly obtains a financial advantage from a Commonwealth entity.

What is Deception?

Under section 192B of the Crimes Act 1900 (NSW), deception may include deception by words or conduct about a matter of fact or law.

It can include:

• making false representations;
• misleading another person about an intention;
• providing false information;
• using misleading documents; or
• causing a computer, machine or electronic device to respond in a way the person is not authorised to cause.

The deception must generally be intentional or reckless.

Elements of the Offence

To prove an offence of obtaining a financial advantage, the prosecution must establish each required element beyond reasonable doubt.

1. There Was a Deception

The prosecution must prove that the accused engaged in deceptive conduct.

2. The Conduct Was Dishonest

The prosecution must establish that the conduct was dishonest according to the applicable legal test.

Dishonesty is often a key issue in financial advantage matters, particularly where there is a dispute about what the accused knew or intended.

3. A Financial Advantage Was Obtained or a Disadvantage Caused

Depending on the charge, the prosecution must establish that the deception resulted in:

• a financial advantage being obtained;
• property being obtained; or
• another person suffering a financial disadvantage.

4. The Accused Had the Required Intention

The prosecution must establish that the accused intentionally or recklessly engaged in the relevant deceptive conduct.

NSW and Commonwealth Offences

An allegation may arise under State or Commonwealth law depending on the circumstances.

Under section 192E of the Crimes Act 1900 (NSW), the offence may involve obtaining property or a financial advantage through dishonest deception.

Under section 134.2 of the Criminal Code Act 1995 (Cth), the offence may apply where a person dishonestly obtains a financial advantage by deception from a Commonwealth entity.

The applicable law will depend on who is alleged to have suffered the loss or provided the financial advantage.

What Are the Penalties?

Fraud involving obtaining a financial advantage can carry a maximum penalty of 10 years imprisonment under the relevant NSW offence, and serious penalties may also apply to Commonwealth offences.

The sentence imposed will depend on factors including:

• the amount of money involved;
• the period over which the conduct occurred;
• the level of planning or sophistication;
• whether multiple transactions were involved;
• whether there was an abuse of trust;
• whether the alleged victim was a government or Commonwealth entity;
• the accused person’s criminal history;
• whether the matter proceeds as a guilty plea or defended hearing; and
• the accused person’s personal circumstances.

Depending on the seriousness of the matter, sentencing options may include a Conditional Release Order Without Conviction, fine, Community Correction Order, Intensive Correction Order or Full-time Imprisonment.

Pleading Guilty

If you plead guilty, the matter will proceed to Sentencing.

The Court will consider the seriousness of the offending, the amount of any financial advantage obtained, your criminal history, personal circumstances, rehabilitation and any remorse shown.

A guilty plea may also be taken into account when determining the appropriate sentence. Your lawyer can prepare sentencing material and make submissions aimed at achieving the most favourable outcome available.

Pleading Not Guilty

If you plead not guilty, the prosecution must prove every element of the offence beyond reasonable doubt.

Your lawyer may challenge issues such as:

• whether any deception occurred;
• whether the conduct was dishonest;
• whether you intended to obtain a financial advantage;
• whether any financial loss or disadvantage was caused;
• whether another person was responsible;
• the accuracy of financial or electronic records;
• the reliability of witness evidence; and
• inconsistencies in the prosecution case.

If the prosecution cannot prove the offence beyond reasonable doubt, you should be found not guilty.

Defending an Obtaining Financial Advantage Charge

Depending on the circumstances, possible defences or issues may include:

• lack of deception;
• lack of dishonesty;
• absence of the required intention;
• an honest mistake;
• disputing that any financial advantage was obtained;
• mistaken identity;
• duress;
• necessity; or
• challenging the reliability of financial, documentary or electronic evidence.

These matters can involve complex banking, government and digital records, making careful analysis of the prosecution case particularly important.

Which Court Will Hear the Matter?

NSW fraud matters involving obtaining a financial advantage may be dealt with in the Local Court of NSW or proceed to the District Court of NSW, depending on the seriousness of the allegations and how the charge is prosecuted.

Commonwealth offences may also commence in the Local Court before proceeding to a higher court where required.

Your lawyer can advise you about the applicable jurisdiction and what to expect throughout the court process.

How We Can Help

At Chidiac & Associates, we understand that allegations of financial fraud can have serious consequences for your liberty, employment, finances and professional reputation.

We can assist by:

• reviewing the police or prosecution brief;
• examining bank records, financial documents and electronic evidence;
• advising whether the NSW or Commonwealth offence applies;
• advising you about your plea and legal options;
• identifying possible defences;
• engaging appropriate experts where required;
• negotiating with prosecutors;
• seeking withdrawal or reduction of charges where available;
• representing you at all court appearances; and
• preparing your matter for hearing, trial or sentencing.