What is Dishonestly Obtaining a financial advantage or Cause disadvantage by deception?
The offence of ‘Dishonestly obtains financial advantage or cause disadvantage by deception’ pursuant to Section 192E of the Crimes Act 1900 (NSW), or more commonly known as ‘fraud’ is a serious criminal offence. It carries as a maximum penalty, 10 years imprisonment.
These types of offences can often be simple for the prosecution to prove, because there is usually a money trail or the numbers simply don’t add up. The width and breadth of white collar crime is so broad that sentencing statistics offer little assistance in relation to likely penalty.
Fraud is sometimes considered by the community generally as less serious, however is treated very seriously by the courts.
What will the court consider in a fraud offence?
Aggravating factors in an obtaining a benefit by deception matter include:
- The offences involved a deliberate and considered course of dishonesty;
- The dishonest conduct was motivated by a desire for financial gain; or for the advantage of a company where the defendant is a director; or to support a luxurious lifestyle;
- The course of dishonesty was for a lengthy period of time
- The course of dishonesty was sophisticated in that, for example, it involved the creation of false accounting entries; involved multiple co-accused; affected multiple victims.
- The offender is a director of a company or holds a position of trust within the company
- The amount of money involved in the fraud was considerable
Mitigating factors in an obtaining a benefit by deception matter include:
- The offences were unplanned or unsophisticated in nature
- The sum of money involved
- The length of time over which the fraud was conducted
- The age and prospects of rehabilitation of the offender
- Any restitution made to the victim
- The personal subjectives of the offender such as committing the fraud to fund drug/alcohol dependency; gambling habit
Where the offender can show that the fraud was committed due to ‘need, not greed,’ the moral culpability is reduced and the emphasis thus becomes on rehabilitation. The court sometimes refers fraud matters to Forum Sentencing, particularly where young first-time defendants are involved. This more holistic approach to sentencing enables the exploration of the needs of the defendant and those of the victim and a suitable resolution is reached which incorporates both sides of the table. Community Service Orders and Intensive Corrections Orders similarly involve elements of addressing the needs of both the victim and the defendant.
In recent years, courts are taking a much more hard-line approach to what was once perceived as ‘soft’ white-collar crimes. Judges and Magistrates are sending a clear message to the community – stealing money (especially from an employer) is just as bad as assaulting a punter on the street.
How serious a fraud offence is usually will depend on the particulars of each case, sometimes difficult to determine.
For more information or case studies that we have represented our clients in, go to:
The first thing an accused person needs to do is speak to a criminal lawyer!
Call LY Lawyers on 1300 595 299 for a free consultation with one of our experience fraud lawyers.