Offences of 'dishonesty' are a complex area of law, which cover a wide spectrum of illegal activity. Some of the main offences covered are Larceny (Theft), Fraudulent Misappropriation, Obtaining Property by False Pretences, Obtaining a Benefit by Deception, Conspiracy to Defraud, Forgery, and Using a False Instrument.
Each offence has different elements or ingredients, which the Prosecution must prove beyond a reasonable doubt.
Fraud charges are considered by the courts as particularly serious, and will often be considering jail terms, depending on the amount defrauded, the complexity involved and how long it went on for.
The maximum penalty in the Local Court is 2 years and the District Court is 10 years imprisonment.
If you have been charged with the offence of fraud or obtain benefit by deception, then the prosecution must establish certain elements of the offence beyond reasonable doubt. These include:
1. That you by any deception dishonestly obtained property – 'deception' includes any words or conduct used to make the other person believe that you were being honest. It also can include acts done to computers, such as hacking. In determining whether the taking was 'dishonest', the court applies standards of ordinary people in whether it finds that you must have realised that what you were doing was dishonest.
2. That the property belonged to another person
3. That you intended to permanently deprive the person of that property – a person is shown to have the intention to permanently deprive where they treat the property as their own. Borrowing or lending may be treated as permanent deprivation where the person did not intend to permanently lose the property, but they still intended to treat the property as their own.
Defences
There are legal defences available to persons who have committed this offence. Does your scenario fit into a legal defence? The following are examples of possible defences:
- Honest and reasonable mistake of fact – you mistakenly believed that you were entitled to the property
- Necessity – you had to commit the offence to prevent serious injury or danger
- Duress – you were threatened or coerced into taking the property
Ideally you should speak to your solicitor before you speak to police – you need advice as to your rights and obligations so that you are more comfortable with the processes and understand what is happening. Only then can you make the best decisions.
YOUR NEXT STEPS WHEN YOU ARE CHARGED WITH FRAUD OR OBTAIN BENEFIT BY DECEPTION OFFENCE
1. Contact us. Early contact with Tankard’s Law is extremely important, so that you can start to take the right actions immediately. Contacting a financial expert early to go through the accounts. Photocopying diary entries. Obtaining advice in relation to making a statement to police or not. You need early advice.
2. Gather material immediately. You should immediately type out your version of what occurred during the incident and provide this to your lawyer – details get lost in your memory over time. This step is crucial. Obtaining a copy of any relevant receipts, or communication between parties could all be important. You should find out who else might be a witness to what took place and get their details.
3. Prepare. Your best chance in achieving the outcome that you want is to prepare your case properly. Let us help you.
If you have a question about the processes involved in arrest or charge, or attending court and what charges you face or need help understanding what the police are saying to you, contact us by phone on 02 6921 3220 or make a website enquiry. We will get back to you promptly.
Principal Solicitor and Director, Zac Tankard, has been helping Riverina locals charged with criminal offences since 1998. There is no one better qualified to get behind you when you need it most.