At Chidiac & Associates, we provide experienced criminal defence representation to clients facing identity theft, identity fraud and related dishonesty charges throughout Sydney and New South Wales.

What is Identity Theft?

“Identity theft” is a general term rather than the name of one specific NSW criminal offence.

Identity theft may involve obtaining, possessing, using or supplying another person's identification information for an unlawful purpose.

Identification information can include:

• a person's name or address;
• date or place of birth;
• driver's licence or licence number;
• passport or passport number;
• biometric information;
• credit or debit card details;
• financial account numbers;
• usernames or passwords;
• digital signatures;
• personal identification numbers; or
• an Australian Business Number (ABN).

The precise charge will depend upon what the accused is alleged to have done with the information and the purpose for which it was obtained or used.

Identity Fraud Offences

The Commonwealth Criminal Code Act 1995 (Cth) contains specific identity fraud offences under Part 9.5, Division 372.

These include:

• s 372.1 - Dealing in identification information;
• s 372.1A - Dealing in identification information involving use of a carriage service;
• s 372.2 - Possession of identification information; and
• s 372.3 - Possession of equipment used to make identification documentation.

The Commonwealth legislation operates alongside State and Territory laws, meaning the precise legislation relied upon will depend upon the circumstances of the alleged offending.

Dealing in Identification Information

Under s 372.1 of the Criminal Code Act 1995 (Cth), a person may commit an offence where they deal in identification information with the intention that another person will use that information to pretend to be, or pass themselves off as, another person for an unlawful purpose.

“Deal” is broadly defined and can include making, supplying or using identification information.

Maximum penalty: 5 years' imprisonment

The precise circumstances of the alleged dealing are important, including the intended use of the information.

Possession of Identification Information

Under s 372.2, a person may commit an offence by possessing identification information where they intend that the information will be used to facilitate conduct constituting an offence under the identity fraud provisions.

Maximum penalty: 3 years' imprisonment

Importantly, the legislation provides that this offence can apply regardless of whether the person to whom the identification information relates consented to its possession.

Possession of Equipment Used to Make Identification Documentation

Under s 372.3, it is also an offence to possess equipment with the intention that it be used to make identification documentation for the purposes of identity-related offending.

Maximum penalty: 3 years' imprisonment

The circumstances in which the equipment was possessed and the accused's alleged intention will be critical.

NSW Identity Fraud and Identification Information

NSW legislation also contains offences involving identification information.

Under section 192I of the Crimes Act 1900 (NSW), “deal in identification information” includes making, supplying or using identification information. The NSW definition of identification information is similarly broad and includes information such as names, addresses, driver's licences, passports, biometric data, financial account information and passwords.

Identity-related conduct may also constitute fraud under s 192E, where a person, by deception and dishonestly, obtains property, obtains a financial advantage or causes a financial disadvantage.

Maximum penalty for fraud: 10 years' imprisonment

Accordingly, an identity theft investigation may result in charges involving identity information, fraud, obtaining financial advantage or other offences, depending upon what is alleged.

Elements of an Identity Theft Offence

The precise elements depend upon the offence charged.

Generally, the Prosecution may need to establish:

1. Identification Information Was Involved

The Prosecution must establish that the relevant information or document falls within the statutory definition of identification information.

2. The Accused Possessed, Used, Supplied or Dealt With the Information

The Prosecution must establish the particular conduct alleged.

This may involve possession of documents, use of another person's details, supplying information to another person or using information to obtain a benefit.

3. The Required Intention or State of Mind

Many identity offences require the Prosecution to establish a particular intention concerning how the information was to be used.

The accused person's knowledge and intention can therefore be central to the Prosecution case.

Can I Defend an Identity Theft Charge?

Being charged with an identity-related offence does not mean that you are guilty. The Prosecution must prove the relevant elements of the particular offence beyond reasonable doubt.

Depending upon the circumstances, potential issues may include:

• the accused did not possess or use the information;
• the information did not constitute identification information under the legislation;
• the accused did not know the information related to another person;
• the accused did not have the alleged intention;
• the information was obtained or used for a lawful purpose;
• another person had access to the relevant account, device or documents;
• the Prosecution cannot establish who carried out the relevant transaction;
• the evidence concerning the accused's knowledge or intention is insufficient; or
• electronic or documentary evidence has been incorrectly interpreted.

The appropriate defence will depend upon the precise charge and evidence.

Evidence in Identity Theft Cases

Identity theft investigations can involve significant amounts of digital and financial evidence, including:

• bank and credit card records;
• transaction histories;
• driver's licences and passports;
• electronic devices;
• emails and text messages;
• online accounts;
• IP and login information;
• CCTV;
• telecommunications records;
• computer forensic evidence; and
• witness statements.

It is important to carefully examine the evidence connecting the accused to the alleged use or possession of the identification information.

Sentencing for Identity Theft

If convicted, the Court may consider matters including:

• the nature of the identity information involved;
• the number of victims;
• the duration of the offending;
• the financial benefit obtained;
• the financial loss caused;
• the sophistication of the offending;
• whether other people were involved;
• the offender's criminal history;
• personal circumstances;
• remorse and prospects of rehabilitation; and
• whether an early guilty plea was entered.

Where identity theft is associated with financial fraud, the value of the alleged benefit or loss may be particularly significant.

How We Can Help

At Chidiac & Associates, we provide:

• confidential advice about identity theft and identity fraud charges;
• detailed analysis of digital and financial evidence;
• examination of bank and transaction records;
• assessment of identification documents and information;
• advice concerning intention and knowledge;
• advice concerning potential defences;
• representation at court;
• negotiations with prosecutors where appropriate;
• preparation for defended hearings and trials; and
• sentencing advice and representation.

Our approach is built on thorough preparation, careful analysis and strong courtroom advocacy.