Dishonest Destruction of an Accounting Record (NSW)

The offence of intention to defraud by destroying or concealing accounting records came into force on 22 February 2010 and replaced section 175 of the New South Wales Crimes Act (Director willfully destroying books of a company). This new offence can be committed by any person regardless of their status within a company or whether they are employed by the company at all.

In short the offence is committed where a person with an intention to obtain a financial advantage or cause a financial disadvantage dishonestly destroys or conceals an accounting record. A person does not commit this offence by obtaining or intending to obtain property belonging to another unless the person intends to permanently deprive the other of the property.

Maximum penalty

The maximum penalty for the offence of intentionally defrauding by destroying or concealing accounting records is imprisonment for five years.

What the police must prove

For a court to find a person guilty of this offence, it must be satisfied that:

1. The accused destroyed (or concealed) an accounting record; and
2. The destruction or concealment was dishonest; and
3. The accused intended to obtain property belonging to another, or obtain a financial advantage, or cause a financial disadvantage.

Relevant definitions

For the purpose of this offence, dishonesty means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.

A person “obtains property” if:
(a) the person obtains ownership, possession or control of the property for himself or herself or for another person, or
(b) the person enables ownership, possession or control of the property to be retained by himself or herself or by another person, or
(c) the person induces a third person to do something that results in the person or another person obtaining or retaining ownership, possession or control of the property.

“Obtain” a financial advantage includes:

(a) obtain a financial advantage for oneself or for another person, and
(b) induce a third person to do something that results in oneself or another person obtaining a financial advantage, and
(c) keep a financial advantage that one has, whether the financial advantage is permanent or temporary.

A person obtaining property belonging to another without meaning the other permanently to lose the thing itself has, nevertheless, the intention of permanently depriving the other of it if the person’s intention is to treat the thing as his or her own to dispose of regardless of the other’s rights. A borrowing or lending of the property may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

Maximum penalty

The maximum penalty for this offence is five years.

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