A 47-year old man and 38-year old woman from Surf Beach near Bateman's Bay on the New South Wales South Coast have been charged with fraud under section 192E of the Crimes Act 1900 (NSW) for allegedly defrauding a bushfire charity of $10,000.
According to police, the pair's home was raided at 8am on 18 June 2020 and a range of materials were seized, including documents and computer hard drives which suggest the pair were attempting to defraud the charity of a further $20,000.
Detective Crime Manager Scott Nelson told the media,
"Our South Coast Community has been devastated in recent months, and this type of crime, preying on vulnerable members of the community and abusing the good will of others, is absolutely abhorrent".
The pair were refused bail at the police station and remanded in custody to appear in Wollongong Local Court on 19 June 2020.
Information on the name of the charity allegedly defrauded and specifically nature of the allegations is yet to be released.
The offence of fraud in New South Wales
Section 192E of the Crimes Act makes it a criminal offence to obtain property belonging to another, or obtain any financial advantage or cause a financial disadvantage to another, where this is done dishonestly and by any deception.
The maximum penalty for the offence is 10 years in prison when the matter is referred to the District Court, or 2 years if it remains in the Local Court.
To establish the offence, the prosecution must prove that:
- By a deception, the defendant acted dishonestly, and
- These actions created a financial advantage over another person's property, or caused them to suffer a financial disadvantage, and
- The actions were intentional or reckless.
If the prosecution is unable to prove each of these elements beyond a reasonable doubt, the defendant is entitled to an acquittal.
Section 4B of the Act makes clear that whether the conduct amounts to 'dishonesty is to be determined by the trier of fact – whether the magistrate in the Local Court or the jury or judge sitting alone in a higher court – according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.
Section 192B of the Act defines 'deception' as any intentional or reckless deception, by words or other conduct, as to fact or as to law, including:
(a) a deception as to the intentions of the person using the deception or any other person, or
(b) conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make.
Duress is a legal defence to fraud charges.
Matters considered during sentencing
If a person is guilty of a criminal offence in New South Wales, the court is required to consider a range of potentially relevant 'aggravating' and 'mitigating' factors when deciding the appropriate penalty.
Aggravating factors are those which make the particular offence more serious, while mitigating factors may be relied upon to achieve a more lenient penalty than that which would otherwise apply.
These factors are listed in section 21A of the Crimes (Sentencing Procedure) Act 1999 are:
21A(2) Aggravating factors
(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work,
(b) the offence involved the actual or threatened use of violence,
(c) the offence involved the actual or threatened use of a weapon,
(ca) the offence involved the actual or threatened use of explosives or a chemical or biological agent,
(cb) the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance,
(d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),
(e) the offence was committed in company,
(ea) the offence was committed in the presence of a child under 18 years of age,
(eb) the offence was committed in the home of the victim or any other person,
(f) the offence involved gratuitous cruelty,
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
(h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),
(i) the offence was committed without regard for public safety,
(ia) the actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth),
(ib) the offence involved a grave risk of death to another person or persons,
(j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,
(k) the offender abused a position of trust or authority in relation to the victim,
(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, because of the geographical isolation of the victim or because of the victim's occupation (such as a person working at a hospital (other than a health worker), taxi driver, bus driver or other public transport worker, bank teller or service station attendant),
(m) the offence involved multiple victims or a series of criminal acts,
(n) the offence was part of a planned or organised criminal activity,
(o) the offence was committed for financial gain,
(p) without limiting paragraph (ea), the offence was a prescribed traffic offence and was committed while a child under 16 years of age was a passenger in the offender's vehicle.
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
21A(3) Mitigating factors
(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,
(b) the offence was not part of a planned or organised criminal activity,
(c) the offender was provoked by the victim,
(d) the offender was acting under duress,
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
(h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,
(i) the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
(j) the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability,
(k) a plea of guilty by the offender (as provided by section 22 or Division 1A),
(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),
(m) assistance by the offender to law enforcement authorities (as provided by section 23),
(n) an offer to plead guilty to a different offence where the offer is not accepted, the offender did not plead guilty to the offence and the offender is subsequently found guilty of that offence or a reasonably equivalent offence (this circumstance, among others, is provided for by section 25E (1)).
Sentencing considerations of greatest significance to fraud cases
When it comes to fraud offences, the courts have found that the most significant sentencing considerations when assessing the seriousness of the specific offending conduct are:
- The amount of money involved and whether the loss is irretrievable:
Repayment of the debt can be a significant mitigating factor on sentencing.
- The length of time over which the offences took place:
Protracted offending will generally be considered as more serious than that which occurred over a short period of time.
- The motive for the crime:
Offending may be seen as more serious where it is solely for greed rather than need. Examples of need may be a desperate financial situation or addiction.
- The degree of planning and sophistication:
Well-planned and executed fraudulent schemes may be seen as more serious than simplistic and opportunistic ones.
- Breach of trust:
Offending may be seen as more serious when a person is in a position of trust, such as where he or she was given the responsibility for managing accounts.
Other important considerations include the impact of the offending conduct on public confidence in the integrity of the defrauded entity or person, as well as the impact on the victim or victims.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.