What is Fraud?

Fraud is primarily dealt with under section 192E of the Crimes Act 1900 (NSW). The offence generally occurs where a person, by deception, dishonestly:

• obtains property belonging to another person;
• obtains a financial advantage; or
• causes another person to suffer a financial disadvantage.

Fraud can take many forms and may involve false representations, dishonest transactions, misuse of money or property, false documents or misleading statements.

Other related fraud offences are also found in the Crimes Act, including:

• section 192F – intention to defraud by destroying or concealing accounting records;
• section 192G – intention to defraud by false or misleading statements; and
• section 192H – intention to deceive members or creditors by false or misleading statements made by an officer of an organisation.

Elements of a Fraud Offence

To prove fraud under section 192E, the prosecution must establish each required element beyond reasonable doubt.

1. There Was a Deception

The prosecution must prove that the accused engaged in conduct that was false, misleading or deceptive.

This may involve:

• making false representations;
• providing misleading information;
• using false documents;
• concealing relevant information; or
• engaging in dishonest financial transactions.

2. The Conduct Was Dishonest

The prosecution must establish that the accused acted dishonestly in the circumstances.

Dishonesty is often a central issue in fraud matters, particularly where there is a dispute about what the accused knew or intended at the time.

3. Property or a Financial Advantage Was Obtained, or a Financial Disadvantage Was Caused

The prosecution must prove that the dishonest deception resulted in:

• obtaining another person’s property;
• obtaining a financial advantage; or
• causing another person to suffer a financial disadvantage.

4. The Accused Had the Required Intention

The prosecution must establish that the accused intentionally engaged in the relevant dishonest conduct.

Other Fraud-Related Offences

Fraud allegations may also involve more specific offences.

Section 192F – Destroying or Concealing Accounting Records

This offence may apply where a person dishonestly destroys or conceals accounting records with the intention of obtaining property, obtaining a financial advantage or causing a financial disadvantage.

Section 192G – False or Misleading Statements

This offence may apply where a person dishonestly makes or publishes a materially false or misleading statement with the intention of obtaining property or a financial advantage, or causing a financial disadvantage.

Section 192H – False Statements by Officers of Organisations

This offence may apply where an officer of an organisation dishonestly makes or publishes a false or misleading statement with the intention of deceiving members or creditors about the organisation’s affairs.

What Are the Penalties for Fraud?

The maximum penalty depends on the particular offence charged.

For fraud under section 192E, the maximum penalty is 10 years imprisonment when dealt with on indictment.

Other related offences may carry maximum penalties including:

• section 192F – up to 5 years imprisonment;
• section 192G – up to 5 years imprisonment; and
• section 192H – up to 7 years imprisonment.

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 or sophistication;
• whether there were multiple victims;
• whether there was an abuse of trust;
• 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 imprisonment.

Pleading Guilty

If you plead guilty to a fraud offence, the matter will proceed to sentencing.

The Court will consider the seriousness of the offending, the amount involved, 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 actually occurred;
• whether the accused acted dishonestly;
• whether there was an intention to obtain a financial advantage;
• whether the alleged financial loss was caused by the accused;
• the accuracy of accounting or financial records;
• the reliability of witness evidence;
• the interpretation of emails, messages or documents; and
• inconsistencies in the prosecution case.

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

Defending a Fraud Charge

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

• lack of dishonesty;
• lack of intention to deceive;
• an honest mistake;
• disputing that any financial advantage was obtained;
• disputing responsibility for the alleged conduct;
• mistaken identity;
• duress;
• necessity; or
• challenging the reliability of financial, documentary or electronic evidence.

Fraud matters can involve large volumes of financial and digital evidence, so careful analysis of the prosecution case is often critical.

Which Court Will Hear a Fraud Matter?

Fraud under section 192E is generally a Table offence, meaning it may be dealt with in the Local Court of NSW unless an election is made for the matter to proceed on indictment to the District Court of NSW.

More serious or complex fraud matters may be dealt with in the District Court.

How We Can Help

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

We can assist by:

• reviewing the police brief and financial evidence;
• examining bank records, invoices, emails and other documents;
• advising you about your plea and legal options;
• identifying weaknesses in the prosecution case;
• engaging forensic or accounting experts where appropriate;
• 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.