IDENTITY THEFT OFFENCES (CTH)

Identity theft involves a person using another’s personal information such as name, address, date of birth, licence or passport number, Medicare or credit card information without consent. There are identity theft offences under both State and Commonwealth law. The Commonwealth identity theft offences are contained at Part 9.5 or Division 372 of the Criminal Code Act 1995 (Cth) (“the Code”). This article deals with identity theft offences under Commonwealth law. 

Dealing in Identification Information – Section 372.1 Criminal Code Act

The offence of dealing in identification information is contained at Section 372.1 of the Code. This section makes it an offence for a person to deal in any information that is identification information belonging to another person. The maximum penalty for this offence is 5 years imprisonment. 

The following acts constitute dealing in identification information:

• Using a neighbour’s name, date of birth and drivers licence number to apply for a credit card in person at the Bank without their knowledge, 
• Corresponding with persons via letters using your friend’s name, address and date of birth and demanding money for a personal emergency, 
• Attending a ServiceNSW in person and applying for a new driver’s licence with another person’s name, address, drivers licence number and passport number and then using the new drivers licence to hire a car as a getaway vehicle from a robbery. 

What Must Be Proven?

For a person to be found guilty of dealing in identification information, the Prosecution must prove each of the following matters beyond a reasonable doubt:  

• You, 
• “Deal” in “identification information”, and 
• Intend that any person will use the identification information to pretend to be, or to pass the user off as, another person (whether living, dead, real or fictitious) for the purpose of:
  • Committing an offence, or 
  • Facilitating the commission of an offence, and
• The offence is either:
  • An indictable offence against the law of the Commonwealth, or
  • A foreign indictable offence.

Section 372.1(3) notes that the offence applies even if committing the offence is impossible, if the offence is to be committed at a later time, or whether or not the person to whom the identification information concerned consented to the dealing in the identification information. 

If the prosecution does not prove every single one of the above elements, you will be found not guilty. 

Definitions:

The definitions section at Section 370.1 of the code defines “deal” in the context of dealing identification information to include, make, supply or use any such information. 

“Identification information” is defined under the definitions section to mean any information, or a document, relating to a person (whether living, dead, real or fictitious) that is capable of being used (whether alone or in conjunction with other information or documents) to identify or purportedly identify the person, including any of the following:

1. A name or address;
2. A date or place of birth, whether the person is married or has a de facto partner, relatives’ identity or similar information;
3. A driver’s licence or driver’s licence number;
4. A passport or passport number;
5. Biometric data;
6. A voice print;
7. A credit or debit card, its number, or data stored or encrypted on it;
8. A financial account number, user name or password;
9. A digital signature;
10. A series of numbers or letters (or both) intended for use as a means of personal identification;
11. An ABN.

The Criminal Code Act 1995 in Section 5.6(1) provides that where the law creating the offence does not specify a fault element for a physical element that consists only of conduct, that intention is the fault element for that physical element. Accordingly, the defendant must have an “intention” to deal in the identification information meaning he or she meant to engage in that conduct. 

The section prescribes the fault element of “intention” to apply to use of the identification information being used to pretend to be or to pass off as another person for the purpose of committing or facilitating an offence. The defendant must have an intention to use the information in such a way which means that the defendant meant to engage in that conduct. 

A “foreign indictable offence” means an offence against a law of a foreign country or part of a foreign country that is constituted by conduct that, if engaged in in Australia, would constitute an indictable offence against a law of the Commonwealth.

Section 372.1(2) of the Code prescribes that “absolute liability” applies in respect whether the offence is a Commonwealth indictable offence or a foreign indictable offence. Absolute liability as defined at Section 6.2 of the Code means there is no fault / mental element attached to the related physical element of the offence and that the defendant is unable to raise the defence of honest and reasonable mistake of fact. Practically this means that the defendant does not need to intend nor have knowledge that nor be reckless to whether the offence is a Commonwealth indictable offence or a foreign indictable offence, only that the offence is in fact of that kind. 

Which Court will Hear the Matter:

This offence is an indictable offence which under the Criminal Procedure Act 1986 prescribes that the matter is to be dealt with on indictment in the District Court unless the parties agree to summary jurisdiction in the Local Court. 

Possible Defences to Dealing in Identification Information:

• The person is dealing with their own identification information – Section 372.1(4) of the Code.
• Self-defence, 
• Necessity, 
• Duress,

Dealing in Identification Information That Involves Use of a Carriage Service – Section 372.1A Criminal Code Act

If a person deals in identification information using a carriage service, they are liable to be charged with an offence pursuant to Section 372.1A of the Code. The maximum penalty for this offence is 5 years imprisonment. 

The following acts constitute dealing in identification information using a carriage service:

• Using a neighbour’s name, date of birth and drivers licence number to apply for a credit card online through a Bank’s website without your neighbour’s knowledge, 
• Corresponding with persons via email or text letters using your friend’s name, address and date of birth and demanding money for a personal emergency, 
• Applying for a new driver’s licence online to ServiceNSW using a deceased person’s name, address, drivers licence number and passport number and using the driver’s licence to hire a car as a getaway vehicle from a robbery. 

What Must Be Proven?

For a person to be found guilty of dealing in identification information using a carriage service, the Prosecution must prove each of the following matters beyond a reasonable doubt:  

• You, 
• “Deal” in “identification information”, and 
• Do so “using a carriage service”, and
• You intend that the user will use the identification information to pretend to be, or to pass the user off as, another person (whether living, dead, real or fictitious) for the purpose of:
  • Committing an offence, or 
  • Facilitating the commission of an offence, and
• The offence is either:
  • An indictable offence against the law of the Commonwealth, or
  • An indictable offence against a law of the State or Territory,
  • A foreign indictable offence.

Section 372.1A(6) notes that the offence applies even if committing the offence is impossible or the offence is to be committed at a later time and whether or not the person to whom the identification information concerned consented to the dealing in the identification information. 

If the prosecution does not prove every single one of the above elements, you will be found not guilty. 

Definitions:

The definitions section at Section 370.1 defines “deal” in the context of dealing identification information to include, make, supply or use any such information. 

“Identification information” is defined under the definitions section to mean any information, or a document, relating to a person (whether living, dead, real or fictitious) that is capable of being used (whether alone or in conjunction with other information or documents) to identify or purportedly identify the person, including any of the following:

1. A name or address;
2. A date or place of birth, whether the person is married or has a de facto partner, relatives’ identity or similar information;
3. A driver’s licence or driver’s licence number;
4. A passport or passport number;
5. Biometric data;
6. A voice print;
7. A credit or debit card, its number, or data stored or encrypted on it;
8. A financial account number, user name or password;
9. A digital signature;
10. A series of numbers or letters (or both) intended for use as a means of personal identification;
11. An ABN.

The Criminal Code Act 1995 in Section 5.6(1) provides that where the law creating the offence does not specify a fault element for a physical element that consists only of conduct, that “intention” is the fault element for that physical element. Accordingly, the defendant must have an intention to deal in the identification information to satisfy this element meaning he or she must mean to deal with the identification information.  

A person is taken to not “use a carriage service” at Section 473.5 of the Act where:

• the person is a carrier and, in engaging in that conduct, is acting solely in the person’s capacity as a carrier; or
• the person is a carriage service provider and, in engaging in that conduct, is acting solely in the person’s capacity as a carriage service provider; or
• the person is an internet service provider and, in engaging in that conduct, is acting solely in the person’s capacity as an internet service provider; or
• the person is an Australian hosting service provider and, in engaging in that conduct, is acting solely in the person’s capacity as an Australian hosting service provider.

A “carriage service” is defined in the Telecommunications Act 1997 to mean “a service for carrying communications by means of guided and/or unguided electromagnetic energy”.

The section prescribes the fault element of “intention” to apply to use of the identification information being used to pretend to be or to pass off as another person for the purpose of committing or facilitating an offence. The defendant must have the intention to use the information in such a way. Practically what is required is that the defendant meant to engage in that conduct. 

A “foreign indictable offence” means an offence against a law of a foreign country or part of a foreign country that is constituted by conduct that, if engaged in in Australia, would constitute an indictable offence against a law of the Commonwealth.

Section 372.1(2) of the Code prescribes that “absolute liability” applies in respect whether the person uses a carriage service and whether the offence is a Commonwealth indictable offence or a foreign indictable offence. Absolute liability as defined at Section 6.2 of the Code to mean that there is no fault / mental element attached to the related physical element of the offence and that the defendant is unable to raise the defence of honest and reasonable mistake of fact. Practically this element will be satisfied if the offence is either a Commonwealth or Foreign indictable offence,  and where a carriage service was used. 

Which Court will Hear the Matter:

This offence is an indictable offence which under the Criminal Procedure Act 1986 prescribes that the matter is to be dealt with on indictment in the District Court unless the parties agree to summary jurisdiction in the Local Court. 

Possible Defences to Dealing in Identification Information:

• The person is dealing with their own identification information – Section 372.1A(7) of the Code.
• Self-defence, 
• Necessity, 
• Duress,

Possession of Identification Information – Section 372.2 Criminal Code Act

It is an offence to possess identification information of another person and intend to use that information to engage in dealing with that information as per Section 372.2 of the Code. 

The following acts constitute dealing in identification information using a carriage service:

• Obtaining and storing a deceased person’s identification information with intention to use that information to apply for and use a credit card in the deceased person’s name, 
• A person found with a list of credit card numbers and CVV codes as bought from the dark web with intention to use those numbers to commit a fraudulent offence,
• Someone steals a neighbour’s utility bills and bank statements from a mailbox with the intention to contact the bank and take over management of the neighbour’s account. 

What Must Be Proven?

For a person to be found guilty of possessing identification information, the Prosecution must prove each of the following matters beyond a reasonable doubt:  

• You, 
• Possess “identification information”, and
• Intend that any person will use the identification information to engage in conduct, and
• The conduct constitutes an offence against Section 372.1 (Dealing in Identification Information) or subsection 372.1A(1) or (3) (Using Carriage Service to Deal in Identification Information). 

Section 372.2(3) notes that the offence applies whether or not the person to whom the identification information relates consented to the possession of the identification information. 

Definitions:

“Identification information” is defined under the definitions section to mean any information, or a document, relating to a person (whether living, dead, real or fictitious) that is capable of being used (whether alone or in conjunction with other information or documents) to identify or purportedly identify the person, including any of the following:

1. A name or address;
2. A date or place of birth, whether the person is married or has a de facto partner, relatives’ identity or similar information;
3. A driver’s licence or driver’s licence number;
4. A passport or passport number;
5. Biometric data;
6. A voice print;
7. A credit or debit card, its number, or data stored or encrypted on it;
8. A financial account number, user name or password;
9. A digital signature;
10. A series of numbers or letters (or both) intended for use as a means of personal identification;
11. An ABN.

The Criminal Code Act 1995 in Section 5.6(1) provides that where the law creating the offence does not specify a fault element for a physical element that consists only of conduct, that intention is the fault element for that physical element. Accordingly, the defendant must have an “intention” to possess in the identification information meaning he or she means to possess the material. 

The section prescribes the fault element of “intention” to apply to use of the identification information being used to pretend to be or to pass off as another person for the purpose of committing an offence in dealing with the identification information. The defendant must have an “intention” to use the information in such a way, meaning the defendant must mean to engage in pretending to be or mean to pass off the information as the user. 

Section 372.1(2) of the Code prescribes that “absolute liability” applies in respect whether the conduct constitutes an offence against Section 372.1 or Section 372.1A(1) or (3). Absolute liability as defined at Section 6.2 of the Code to mean that there is no fault / mental element attached to the related physical element of the offence and that the defendant is unable to raise the defence of honest and reasonable mistake of fact. Practically this means that the defendant does not need to intend nor have knowledge that nor be reckless to whether it is an offence to deal in identification information, only that the conduct that is engaged in is a Section 372.1 or Section 372.1A(1) or (3) offence.

Which Court will Hear the Matter:

This offence is an indictable offence which under the Criminal Procedure Act 1986 prescribes that the matter is to be dealt with on indictment in the District Court unless the parties agree to summary jurisdiction in the Local Court. 

Possible Defences to Dealing in Identification Information:

• The person is dealing with their own identification information – Section 372(4) of the Code.
• Self-defence, 
• Necessity, 
• Duress,

Possession of Equipment Used to Make Identification Documents – Section 372.3 Criminal Code Act

Section 372.3 of the Code makes it an offence for a person to possess equipment to make identification documents with the intention to use that identification material to commit an offence of dealing in that identification information. 

The following acts constitute possession of equipment to make identification information:

• Possessing hardware skimming devices (known as skimmers) – A person is caught at an ATM with a skimmer (a small electronic device designed to be placed over a credit card slot to record data from the magnetic strip, 
• A person developing a computer program that records keystrokes on the victim’s computer (known as a keylogger),
• Possessing specific industry-grade printers, laminators, specialised holographic overlays used to create fake drivers’ licences and passports. 

What must be proven?

For a person to be found guilty of dealing in identification information using a carriage service, the Prosecution must prove each of the following matters beyond a reasonable doubt:  

• You, 
• Possess equipment, and 
• Intend that any person will use the equipment to make identification documents, and 
• Intend that any person will use the identification documentation to engage in conduct, and 
• The conduct constitutes an offence against Section 372.1 (Dealing in Identification Information) or subsection 372.1A(1) or (3) (Using Carriage Service to Deal in Identification Information). 

Definitions:

“Identification documentation” is defined under the definitions section to mean any document or other thing that contains or incorporates identification information and is capable of being used by a person for the purpose of pretending to be, or passing the person off as, another person (whether living, dead, real or fictitious). 

“Identification information” is defined under the definitions section to mean any information, or a document, relating to a person (whether living, dead, real or fictitious) that is capable of being used (whether alone or in conjunction with other information or documents) to identify or purportedly identify the person, including any of the following:

1. A name or address;
2. A date or place of birth, whether the person is married or has a de facto partner, relatives’ identity or similar information;
3. A driver’s licence or driver’s licence number;
4. A passport or passport number;
5. Biometric data;
6. A voice print;
7. A credit or debit card, its number, or data stored or encrypted on it;
8. A financial account number, user name or password;
9. A digital signature;
10. A series of numbers or letters (or both) intended for use as a means of personal identification;
11. An ABN.

The section prescribes the fault element of “intention” to apply to use of the identification information and to apply to the possession of equipment to make identification documents. The defendant must have an intention to use the equipment in that way and an intention to use the identification documents to engage in conduct that is an offence. Intention in this context means that the person means to engage in that conduct. 

Section 372.1(2) of the Code prescribes that “absolute liability” applies in respect whether the conduct constitutes an offence against Section 372.1 or Section 372.1A(1) or (3). Absolute liability as defined at Section 6.2 of the Code to mean that there is no fault / mental element attached to the related physical element of the offence and that the defendant is unable to raise the defence of honest and reasonable mistake of fact. Practically this means that the defendant does not need to intend nor have knowledge that nor be reckless to whether it is an offence to deal in identification information, only that the conduct that is engaged in is a Section 372.1 or Section 372.1A(1) or (3) offence.

Which Court will Hear the Matter:

This offence is an indictable offence which under the Criminal Procedure Act 1986 prescribes that the matter is to be dealt with on indictment in the District Court unless the parties agree to summary jurisdiction in the Local Court. 

Possible Defences to Dealing in Identification Information:

• Self-defence, 
• Necessity, 
• Duress,

Common Questions about Identity Theft Offences:

Will I receive a criminal conviction?

A conviction and criminal record for these offences is likely. 

In NSW, a court can impose any of the following penalties for aircraft related offences.

• Gaol Sentence
• Section 20(1)(a) Recognizance Order
• Intensive Corrections Order (ICO)
• Section 20(1)(b) Conditional Release Order
• Community Corrections Orders (CCO)
• Fine
• Section 19B(1)(d) Recognizance Order
• Conditional Release Order with Conviction 
• Section 19B(1)(c) Dismissal
• Conditional Release Order without Conviction
• Section 10(1)(a) Dismissal

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for identity theft offences might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover a conviction for an offence of identity theft can completely rule out certain career paths such as a range of government employment options. 

Will I go to Gaol for Identity Theft?

Whether a person is sentenced to gaol for committing a Commonwealth identity offence will depend on the seriousness and circumstances of their matter. 

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