cybercrime

Author: Nyman Gibson Miralis

Subject: Internet Fraud in NSW

Keywords: Cybercrime, Cyber Fraud, Court, Overview

 

What is cyber / online fraud?

Pursuant to section 192E of the Crimes Act 1900 (NSW), fraud is committed when a person, by way of any deception, dishonestly obtains property belonging to another or obtains any financial advantage or causes financial disadvantage.

The Australian Federal Police refer to ‘online fraud’ as any type of scheme using email, web sites, chat rooms or message boards to conduct fraudulent transactions and activity.

 

How does cyber / internet  fraud fall within the scope of Fraud in s192E of the Crimes Act 1900 (NSW)?

Section 192B of the Crimes Act (NSW) defines deception as conduct by a person that causes a computer, machine or electronic device to make a response that a person is not authorised to cause it to make. Because deception is an element of the Fraud offence in section 192E, any fraudulent conduct conducted through a computer, including activity online, falls within the offence of Fraud.

 

Who has jurisdiction to prosecute cyber / computer fraud?

The NSW Police has jurisdiction to investigate and prosecute offences that occur on the cyber sphere. Police focus on online fraud which includes internet banking, mobile banking, phishing, mule recruitment, shopping and auction site fraud, scams, spam and identity theft.

 

What needs to be proved for a fraud offence to be established in a NSW court?

The prosecution will need to prove that:

1) by deception, you acted dishonestly; and
2) because of the deception and dishonesty, you obtained a financial advantage; OR
3) because of the deception and dishonesty, you caused someone else to suffer a financial disadvantage; and
4) you did so either intentionally or recklessly.

 

What factors will be considered by the Court?

There are several factors that bear on the objective seriousness of the offence, this is used to work out the severity of the offence in comparison to others of the same nature. The Court will look at the amount of money involved, the length of time over which the offences are committed, the motive for the crime, the degree of planning and sophistication and whether there was an accompanying breach of trust.

 

What are some possible defences to a fraud charge?

Apart from mitigating factors used to reduce culpability, some of the possible defences include:

  • mistaken identity,
  • honest and reasonable mistake of fact,
  • duress,
  • mental illness and
  • necessity.

 

What are some common penalties for cyber fraud offences?

The penalty will depend on the severity of the alleged offence and whether a plea of guilty or not guilty is entered into. The court will have the power to impose a range of penalties which may include either a Fine, Good Behaviour Bond, Community Service Order, Intensive Correction Order, Home Detention, Suspended Sentence or Imprisonment.

In R v Woodman [2001] NSWCCA 310, it was stated that when sentencing fraud offences, greater assistance is gained from general sentencing principles rather than statistics of fraud appeals due to the variation in objective and subjective circumstances of fraud. The dangers of comparing sentencing for fraud cases was also expressed in R v Hawker [2001] NSWCCA 148 where it was said that many of the cases involved differing sums of money, the offenders holding different positions of trust or none at all and others where the fraud occurred for a short duration as opposed to being complex and prolonged.

 

Nyman Gibson Miralis specialise in dealing with complex national and international cybercrime investigations. Our expertise includes dealing with malware, phishing and computer hacking offences, bootlegging and tripping, Bitcoin and crypto-currency fraud, as well as offences relating to identity theft, spreading computer viruses and DDoS attacks. If you require assistance, contact one of our expert criminal defence lawyers