Embezzlement By Clerk

In NSW, the offence of embezzlement by clerk or servants carries a maximum penalty of ten years imprisonment. This offence relates to any instance of embezzlement from an employer by an employee.

Local Court penalties

If the matter is dealt with in the Local Court, the penalties available are subject to limitations depending on the value of the property embezzled:

• If the value exceeds $5,000, the maximum penalty is limited to two years imprisonment and/or 100 penalty units.
• If the value does not exceed $5,000, the maximum penalty is two years imprisonment and/or 50 penalty units.
• If the value does not exceed $2,000 the maximum penalty is two years imprisonment and/or 20 penalty units.

The legislation

The offence of embezzlement by clerk or servants is contained in section 157 of the Crimes Act 1900 which states: “whosoever, being a clerk, or servant fraudulently embezzles, either the whole or any part of, any property delivered to, or received, or taken into possession by him or her, for, or in the name, or on the account of, his or her master, or employer, shall be deemed to have stolen the same, although such property was not received into the possession of such master, or employer, otherwise than by the actual possession of such clerk, or servant, and shall be liable to imprisonment for ten years.”

What Actions Might Constitute Embezzlement by Clerk?

The following actions could form the basis for a charge of embezzlement by clerk:

1. There must be a theft of property. For an offence under this provision, the property taken must be something tangible and must have some value. For example, it could include a cheque but would not include information.
2. The property taken must belong to the offender’s ‘master’ or ‘employer’. This is generally taken to be an employer, which could be a single person, a company or a corporation. By law you are a ‘clerk or servant’ if you are “bound to obey the orders of [your] employer,” that is, you are under their control: R v Negus.
3. The section sets out that property would be deemed to be ‘stolen’ if it was “delivered to, or received, or taken into possession … for, or in the name, or on the account of his or her master or employer”if the master or employer did not receive that property.

Embezzlement or larceny?

The difference between embezzlement and larceny relates to the possession of the property when it is being taken. If the property was in possession of the master or employer when taken, this is larceny. Where the property is taken by the clerk or servant before the master has possession, it is embezzlement: R v Davenport [1954] 1 All ER 602.

A simple example of this would be to say that an employee taking money out of the till is larceny. Embezzlement would have occurred if an employee received money from goods sold (on behalf of the employer) and took possession of that money.

What must be proven?

In order for a person to be found guilty of this offence, the court must be satisfied that:

1. The accused was a ‘clerk’ or ‘servant’ of the owner of the property at the time of the offence.
2. That they:
   • Received;
   • Had delivered to; or
   • Took into their possession
3. Property for, in the name of, or on account of the master/employer; and
4. They fraudulently embezzled that property.

Which Court Will Hear Your Matter?

This will depend on the value of the property alleged to have been taken.

If the value of the property exceeds $5,000, it is a Table 1 offence. This means that the matter will likely be dealt with in the Local Court, however the DPP or the defendant can elect to have the matter dealt with in the District Court.

If the value of the property is does not exceed $5,000, it is a Table 1 offence. This means that the matter will also be likely to be dealt with in the Local Court; however, the DPP can elect to have the matter dealt with in the District Court.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.