What is Embezzlement?

Embezzlement is an offence under section 157 of the Crimes Act 1900 (NSW). It generally involves an employee, clerk or servant fraudulently taking or misappropriating money or property that was entrusted to them on behalf of their employer.

The offence is different from ordinary theft because the accused may originally have had lawful access to the money or property through their employment. The alleged wrongdoing arises from the later dishonest use or misappropriation of those assets.

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Elements of an Embezzlement Offence

To prove embezzlement, the prosecution must establish each required element beyond reasonable doubt.

1. The Accused Was a Clerk or Servant

The prosecution must prove that the accused was employed in a position that brought them within the scope of section 157 of the Crimes Act 1900 (NSW).

2. Property Was Entrusted to the Accused

The prosecution must establish that money or property was received or held by the accused on behalf of their employer.

3. The Property Was Fraudulently Misappropriated

The prosecution must prove that the accused fraudulently took, used or dealt with the money or property for an unauthorised purpose.

Dishonesty and intention are often central issues in embezzlement cases.

What Are the Penalties for Embezzlement?

Under section 157 of the Crimes Act 1900 (NSW), embezzlement carries a maximum penalty of 10 years imprisonment when dealt with on indictment.

Where the matter is dealt with in the Local Court of NSW, lower sentencing limits may apply depending on the value of the property involved.

The sentence imposed will depend on factors including:

• the amount of money or value of property involved;
• the period over which the conduct occurred;
• the level of planning involved;
• whether there was an abuse of trust;
• whether the money or property was repaid;
• 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 to embezzlement, the matter will proceed to sentencing.

The Court will consider the seriousness of the offending, the amount involved, the breach of trust, 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 the money or property was actually entrusted to you;
• whether you were responsible for the alleged transactions;
• whether the conduct was dishonest;
• whether there was authority to use or deal with the property;
• whether accounting records are accurate;
• whether another person was responsible; and
• inconsistencies in the prosecution case.

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

Defending an Embezzlement Charge

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

• lack of dishonesty;
• lack of intention to permanently deprive or misappropriate;
• authority or permission to deal with the property;
• accounting or bookkeeping errors;
• mistaken identity;
• duress;
• necessity; or
• challenging the reliability of financial and documentary evidence.

Embezzlement matters often involve extensive financial records, so careful examination of bank statements, accounting systems and workplace records can be particularly important.

Which Court Will Hear an Embezzlement Matter?

Embezzlement is generally a Table offence, meaning many matters may be dealt with in the Local Court of NSW. More serious matters may proceed on indictment to the District Court of NSW depending on the allegations and any election made.

Your lawyer can advise you about where your matter is likely to be heard and what to expect throughout the court process.

How We Can Help

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

We can assist by:

• reviewing the police brief and allegations;
• examining bank statements, accounting records and workplace documents;
• advising you about your plea and legal options;
• identifying possible defences;
• challenging allegations of dishonesty or misappropriation;
• negotiating with prosecutors where appropriate;
• seeking withdrawal or reduction of charges where available;
• representing you at all court appearances; and
• preparing your matter for hearing, trial or sentencing.