raud can be defined as an act, or a failure to act, coupled with an intent to obtain an unauthorised benefit by means of deception or other unethical means which are relied upon by others. 

Types of Fraud

Fraud s 192 E

Fraud under s 192 E of the Crimes Act carries a maximum penalty of 10 years’ imprisonment. 

To convict an individual with fraud under s 192 E of the Crimes Act, the prosecution must prove the following elements beyond a reasonable doubt:

• The individual, by engaging in deception, acted dishonestly

By law, you can act deceptively through words or any other conduct. This can include deceiving another person about your intentions, or using a machine, computer or electronic device to make an unauthorised transaction.

The court will consider whether an ordinary person would have found your conduct dishonest, and whether you should have known that your conduct was dishonest.

• The individual’s deceptive or dishonest actions allowed them to obtain a financial advantage of another’s property; or caused another individual to suffer financial advantage

The prosecution must prove that you either obtained a financial benefit or obtained property for yourself or for another person, or allowed the property to be kept by you when it legally belonged to another person.

For property to belong to someone else, the other person must either have possession or control of the property, or they must legally own it.

Property can include physical property and intangible goods.

You may also be found guilty of fraud when you cause another person to suffer a financial loss that they should not have suffered

• The individual acted with intention or recklessness

The prosecution must also prove that you should have known that what you were doing was deceptive and dishonest but you continued to do it anyway.

False Accusations

Falsely accusing someone carries a maximum penalty of 7 years’ imprisonment.

To convict an individual falsely accusing someone, the prosecution must prove the following elements beyond a reasonable doubt:

• The individual knew the person was innocent
• The individual made a false accusation about that person
• The individual intended the person to be the subject of a criminal investigation

Defences

• Duress: Where you were threatened or coerced into the fraudulent conduct
• Necessity: Where you engaged in the fraudulent conduct to prevent serious danger or injury
• Honest and reasonable mistake of fact: When you accidentally obtained a financial benefit that you were not entitled to due to an honest and reasonable mistake of fact

Embezzlement

Embezzlement is defined as stealing or misappropriating funds or property that an individual has been entrusted with. Embezzlement carries a maximum penalty of 10 years’ imprisonment.

To convict an individual of embezzlement, the prosecution must prove the following elements beyond a reasonable doubt:

• The individual was an employee, clerk or servant
• The individual had possession of funds or property owned by the employer
• The individual fraudulently stole or misappropriated the funds or property

Defences

• Claim of right: Where you reasonably and honestly believed that you had a legal claim to the property
• Duress: Where you were coerced or threatened into embezzling the property or money

Larceny by Clerk or Servant

Larceny by clerk or servant is where an individual steals their employer’s property. Larceny by clerk or servant carries a maximum penalty of 10 years of incarceration.

To convict an individual of larceny by clerk or servant, the prosecution must prove the following elements beyond a reasonable doubt:

• The individual was a clerk, servant or employee
• The individual stole property
• The employer owned the property and had it in their possession

Defences

• Claim of right: Where you believed that you had a legal claim to the property or that it belonged to you
• Duress: Where you were coerced or threatened into stealing the property

Intention to Defraud by Destroying Accounts

Intention to defraud by destroying accounts occurs when individuals alter or destroy accounting records with the intent to obtain property or financial advantage from another party. This offence carries a maximum penalty of 5 years’ imprisonment. 

To convict an individual with the intent to defraud by destroying accounts, the prosecution has to prove the following elements beyond a reasonable doubt:

• The individual destroyed or concealed an accounting record
• The individual did so with the intent of obtaining property, financial advantage or bringing about financial disadvantage to another

Defences

• Duress: Where you were coerced or threatened into embezzling the property or money
• Honest and reasonable mistake: Where you had no intention to defraud, and you made an honest and reasonable mistake of fact and altered the accounting records on this basis.

Intention to Defraud by False or Misleading Statement

Intending to engage in fraud by false or misleading statements carries a maximum penalty of 5 years.

To convict an individual of having the intent to defraud by a false or misleading statement, the prosecution must prove the following elements beyond a reasonable doubt:

• The individual made or published or assisted in the making and publishing of the statement
• The statement was false or misleading
• The individual acted dishonestly

Defences

• Honest and reasonable mistake of fact: Where you reasonably and honestly believed that the statement you were making was true
• Duress: Where you were coerced or threatened into making the statement

Intention to deceive

Intention to deceive refers to the conduct of a manager or executive making false statements with the intent to deceive stakeholders such as creditors and shareholders. The offence carries a maximum penalty of 7 years’ imprisonment.

To convict an individual with the intention to deceive, the prosecution must prove the following elements beyond a reasonable doubt:

• The individual was a manager or officer of an organisation
• The individual made or published statements that they knew were or may have been false or misleading
• The individual published the statement dishonestly
• The individual had the intention of deceiving stakeholders about the affairs of the organisation

Defences

• Duress: Where you were coerced or threatened into making the false or misleading statement
• Honest and reasonable mistake of fact: Where you honestly and reasonably made a mistake of fact as to the accuracy of a statement

Obtaining Property by Deception

Obtaining property by deception is an offence where an individual engages in deception whereby they obtain property belonging to a Commonwealth entity. The maximum penalty for this offence is 10 years’ imprisonment.

To convict an individual of obtaining property by deception, the prosecution must prove the following elements beyond a reasonable doubt:

• The individual obtained property belonging to a Commonwealth entity
• The individual had the intention of permanently depriving the entity of the property
• The individual obtained the property dishonestly and by deception

Defences

• Duress: Where you were threatened or coerced into obtaining the property by deception 
• Honest and reasonable mistake of fact: Where you made an honest and reasonable mistake. For instance, keeping property that you mistakenly believed you were entitled to by honest and reasonable mistake of fact

Obtaining a Financial Advantage by Deception

Obtaining property by deception is an offence where an individual engages in deception whereby they obtain a financial advantage from a Commonwealth entity. The maximum penalty for this offence is 10 years’ imprisonment.

To convict an individual of obtaining a financial advantage by deception, the prosecution must prove the following elements beyond a reasonable doubt:

• The individual obtained a financial advantage from a Commonwealth entity
• The individual did so dishonestly
• The individual’s actions constituted a deception

Defences

• Duress: Where you were threatened or coerced into obtaining the financial advantage 
• Honest and reasonable mistake of fact: Where you made a reasonable and honest mistake. For instance, obtaining a benefit that you mistakenly believed that you were entitled to.

General Dishonesty

General dishonesty refers to situations where individuals while acting dishonestly, obtain a gain or cause a loss to a Commonwealth entity. The maximum penalty for general dishonesty is 10 years of incarceration.

To convict an individual of general dishonesty, the prosecution must prove the following elements beyond a reasonable doubt:

• The individual obtained a gain or caused a loss to a commonwealth entity
• The individual did so with dishonesty
• The individual intended to obtain a gain or cause a loss through their actions

Defences

• Duress: Where you were coerced or threatened into obtaining the benefit or causing the loss 
• Honest and reasonable mistake of fact: Where you made a reasonable and honest mistake of fact in relation to the loss or benefit

False or misleading documents

To be found guilty of ‘false and misleading documents,’ the prosecution must prove that you:

• Produced a document to another person that was false or misleading in a ‘material particular’
• Knew that the document was false or misleading
• Produced the document in compliance with a Commonwealth law

If you believe the prosecution will be unable to prove these elements beyond a reasonable doubt, you can enter a plea of ‘not guilty.’

On the other hand, you may not wish to fight the allegations against you and instead, enter a plea of ‘guilty’ to the charges.

This can be a beneficial move in certain situations as it means that you will be spared the expense and time of a defended trial or hearing to determine your guilt.

It will also indicate to the court that you have accepted responsibility for your actions, which will normally result in a better outcome in your case.

If you are considering pleading guilty, you should be aware of the maximum penalties that can apply in these cases. ‘False or misleading documents’ carry a maximum penalty of 12 months imprisonment, however, this will not always apply.

Ultimately, the magistrate will determine the appropriate penalty after considering the facts of your case and the seriousness of your actions.

The types of penalties that can be imposed include:

• Conditional Release Order
• Fine
• Community Correction Order
• Intensive Correction Order
• Prison
• Section 10 Dismissal

Defences

• Duress: Where you were threatened or coerced into producing the false or misleading document
• Honest and reasonable mistake of fact: Where you made an honest and reasonable mistake as to whether the document was misleading or false in a material particular

Forgery

Forgery is when an individual creates a false document with the intention of deceiving another entity into believing it is legitimate. Forgery carries a maximum penalty of 10 years in prison.

To convict an individual of forgery, the prosecution must prove the following one of the following elements beyond a reasonable doubt:

• The individual makes a fake document with the intention of using it to induce a Commonwealth public official to accept it as genuine, and, if accepted, to dishonestly obtain a gain, cause a loss or influence the exercise of a public duty or function
• The individual makes a fake document intending it to be used to dishonestly cause a computer, machine or electronic device to respond to the document as if it were genuine, and, if accepted, to dishonestly obtain a gain, cause a loss or influence the exercise of a public duty or function, where the response of the machine is in connection with the operations of a Commonwealth entity
• The individual makes a false Commonwealth document, intending it to be used to dishonestly induce another person to accept it as being genuine, and if accepted, to dishonestly obtain a gain, cause a loss or influence the exercise of a public duty or function
• The individual makes a false Commonwealth document intending it to be used to dishonestly cause a computer, machine or electronic device to accept it as genuine, and, if accepted, to dishonestly obtain a gain, cause a loss or influence the exercise of a public duty or function

Defences

Duress: Where you were threatened or coerced into making the false document

Possession of Forged Documents

Possessing forged documents carries a maximum penalty of 10 years’ imprisonment. 

To convict an individual of possessing forged documents, the prosecution must prove the following elements beyond a reasonable doubt:

• The individual possessed a fake document with the intention of using it to induce a Commonwealth public official to accept it as genuine, and, if accepted, to dishonestly obtain a gain, cause a loss or influence the exercise of a public duty or function
• The individual possesses a fake document intending it to be used to dishonestly cause a computer, machine or electronic device to respond to the document as if it were genuine, and, if accepted, to dishonestly obtain a gain, cause a loss or influence the exercise of a public duty or function, where the response of the machine is in connection with the operations of a Commonwealth entity
• The individual possessed a false Commonwealth document, intending it to be used to dishonestly induce another person to accept it as being genuine, and if accepted, to dishonestly obtain a gain, cause a loss or influence the exercise of a public duty or function
• The individual possesses a false Commonwealth document intending it to be used to dishonestly cause a computer, machine or electronic device to accept it as genuine, and, if accepted, to dishonestly obtain a gain, cause a loss or influence the exercise of a public duty or function

Defences

• Duress: Where you were coerced or threatened into possessing a forged document
• Honest and reasonable mistake of fact: Where you reasonably and hone believed that the document was not forged

Obtaining a Financial Advantage

Obtaining a financial advantage is a commonwealth offence where individuals obtain a financial advantage from a commonwealth individual whilst knowing they were not entitled to receive such financial advantage.

A “financial advantage” refers to the benefit or profit that you receive as a result of your actions.

To convict an individual of obtaining a financial advantage, the prosecution must prove the following elements beyond a reasonable doubt:

• The individual engaged in conduct
• The individual obtained a financial advantage from a Commonwealth entity as a result of that conduct
• The individual knew they were not entitled to that financial advantage

Defences

• Duress: Where you were threatened or coerced into obtaining the financial advantage 
• Honest and reasonable mistake of fact: Where you made a reasonable and honest mistake. For instance, obtaining a benefit in which you mistakenly believed that you were entitled to 

Defences

Defences that may be raised when charged with fraud or white-collar crime include:

• Necessity: Where you engaged in the fraudulent conduct to prevent serious danger or injury
• Duress: Where you were threatened or coerced into committing fraud 

Honest and reasonable mistake of fact: Where you made a reasonable and honest mistake