Fraud Charges 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.

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.

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.

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.

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.