Overview

Fraud offences involve a use of deception or dishonesty to obtain an unjust advantage, often at the expense of another person. The general offence of “fraud” covers most situations, but there are also specialised types of fraud offences.

Fraud includes conduct that could also be seen as theft or stealing. However, stealing offences usually target the taking and carrying away of physical property, while fraud charges often involve the use of computers and technology to unlawfully obtain intangible property.

 

What is fraud?

The general offence of fraud captures a broad range of conduct and is criminalised under section 192E of the Crimes Act 1900 (NSW). Fraud can be charged where a person:

  • By any deception or dishonestly,
  • Obtains property belonging to another, or
  • Obtains any financial advantage or causes any financial disadvantage.

Examples of fraud might include creating false receipts to claim reimbursements or refunds, or setting up a credit card in someone else’s name.

 

Definition of “deception” and “dishonesty”

Dishonesty is determined by the standards of the ordinary person. Deception means deceiving someone, by words or conduct, as to the true facts or law. It includes where a person:

  • Deceives another as to their true intentions, or
  • Causes a computer, a machine or any electronic device to make a response that the person is not authorised to make.

 

Categories of frauds

In addition to the general fraud offence described above, the main categories of this offence are identity fraud and forgery.

 

Identity fraud

Identity fraud offences are intended to protect a person’s identity information including financial data such as credit card numbers, account details and biometric records. Part 4AB of the Crimes Act criminalises conduct whereby a person who, with the intention of committing or facilitating an indictable offence:

  • Possesses identification documents.
  • Deals with identification documents.
  • Possesses the equipment to make identification documents.

 

Forgery

Forgery offences under part 5 of the Crimes Act make it an offence to make, use or possess, a false document for the purpose of obtaining a financial advantage or influencing the exercise of a public duty. A relevant document might include a bank statement or passport.

 

Penalties

Fraud offences are treated seriously by the courts, and representation by an experienced fraud lawyer is recommended.

The maximum penalty for fraud under section 192E is 10 years imprisonment, and people found guilty of this crime often receive a prison sentence.

If the matter is heard in the Local Court, the maximum penalty is two years imprisonment and penalties often include a fine, Community Corrections Order or Intensive Correction Order. Learn more about the types of penalties available.

The maximum penalties for specific variations of the main fraud offences are set out below.

 

General fraud

OffenceMaximum sentence
Intention to defraud by destroying or concealing accounting records5 years imprisonment
Intention to defraud by false or misleading statement5 years imprisonment
Intention to deceive members or creditors by false or misleading statement of officer of organisation7 years imprisonment

 

Identity fraud

OffenceMaximum sentence
Deal with identification information with intent to commit or facilitate indictable offence10 years imprisonment
Possess identification information with intent to commit or facilitate indictable offence7 years imprisonment
Possess equipment to make identification document or thing with intent to commit or facilitate indictable offence3 years imprisonment

 

Forgery

OffenceMaximum sentence
Make false document10 years imprisonment
Use false document10 years imprisonment
Possess false document10 years imprisonment
Make or possess equipment for making false document forgery10 years imprisonment

 

Frequently Asked Questions

Where will fraud charges be heard in NSW?

Fraud and forgery offences will ordinarily be dealt with in the Local Court. In rare circumstances, they may be heard in the District Court, but this would usually only occur if a defendant is also charged with further more serious offences that must be dealt with by the District Court.

How will the court decide my sentence?

The court will consider several factors in determining the objective seriousness of a fraud offence and the severity of the sentence:

  • The amount of money involved: This indicates the extent to which the person is willing to be dishonest and flout the law to advance their own purposes.
  • The length of time over which the offences were committed: This can indicate the degree of planning and show that it was not an impulsive offence.
  • The motive for the crime:  If the fraud is based on greed, the sentence imposed will likely be more severe. However, if the offence was committed for another reason such as paying a family member’s medical bills, this will not necessarily result in a lenient sentence.
  • The degree of planning and sophistication: This refers to whether the offence was committed as part of a planned or organised activity, rather than on impulse.
  • Breach of trust: The breach of trust must be in direct contravention of what the offender was engaged to do. Typically, the victim of the offence has imposed that trust on the offender, such as an employer defrauded by an employee.

The sentencing judge or magistrate will also consider the issue of general deterrence, that is, the need to discourage others within the community from committing such offences, often by imposing a lengthy prison sentence. They may also consider a personal deterrence to discourage the offender from repeating their crime.

Can fraud be unintentional?

Deception can be committed intentionally or recklessly. This includes where the accused foresaw the possibility of the victim being deceived but continued with the conduct anyway. You cannot be guilty of fraud if the deception was genuinely unintentional and unforeseen.

Can I be charged with attempted fraud?

There is no specific offence of attempted fraud. Yet, under section 162 of the Criminal Procedure Act 1986, a person who attempts to commit an indictable offence, with intent, is liable to punishment.

Conviction for an attempted offence requires the prosecution to prove beyond reasonable doubt that the accused intended to commit the crime. This can be difficult to prove if the crime was unsuccessful.

Attempted fraud could also be charged as:

  • “Intention to defraud by destroying or concealing account records” or,
  • “Make false document.”

These crimes also involve deception or dishonesty but don’t require the prosecution to prove that any advantage was obtained or intended.

Can I get bail for a fraud offence?

Though there is no presumption against bail for fraud offences, your fraud defence lawyer will need to show that there is no “unacceptable risk” if you are released. In determining whether there is an unacceptable risk, the court will consider the likelihood that you will:

  • Fail to appear in court (are you “a flight risk”?).
  • Commit a serious offence.
  • Endanger the safety of victims, individuals or the community.
  • Interfere with witnesses or evidence.

You may be considered a flight risk if it was alleged that you used false identification documents to commit the offence or there is unrecovered money from the alleged fraud offence. In these cases, bail may be harder to obtain.

How can we help?

Our fraud lawyers in Sydney are experienced in successfully defending fraud charges throughout NSW.

Book a consultation or call us on 1300 668 484 for 24/7 legal advice.

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