This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Fraud Offences (NSW)


In New South Wales, fraud offences are governed by Part 4AA of the Crimes Act 1900. These offences are considered very serious and all carry a maximum penalty of a term of imprisonment, ranging from five to seven years. Fraud offences may be finalised in the Local Court or in the District Court, at the prosecutor or defendant’s election, on assessment of the severity of the charge. One major factor in determining whether an offence under this Part is to be finalised in the Local or the District Court will be the amount of money or the value of the property the charge relates to.

Fraud offences involve an element of dishonesty, and a party being financially disadvantaged. It is not uncommon for offences under this Part to be charged with respect to large sums of money, or property of high value. Parliament’s view is that these offences have ongoing and wide-reaching ramifications for businesses as well as the wider community. It is for that reason that they attract such high maximum penalties.

In New South Wales, the offence of fraud is committed where a person obtains property from another by a dishonest act of deception. It is important to note that a person does not commit the offence of fraud unless the deception was intentional or reckless. 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.

Relevant definitions

Below are some common terms used when discussing fraud.

Cause financial disadvantage

“Cause” a financial disadvantage means:

(a) cause a financial disadvantage to another person, or
(b) induce a third person to do something that results in another person suffering a financial disadvantage, whether the financial disadvantage is permanent or temporary.

Deception

Deception means any 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.

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.

Obtaining property

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.

Obtaining a financial advantage

“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.

Permanently deprive

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. 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.

“Property belongs” to a person if:

(a) the person has possession or control of the property, or
(b) the person has a proprietary right or interest in the property (not being an equitable interest arising only from an agreement to transfer or grant an interest or from a constructive trust).

The below pages outline the fraud offences contained in Part 4AA of the Crimes Act relating to fraud and set out what must be proven to find a person guilty of these offences as well as the maximum penalties applicable and examples of each offence.

If you have been charged with fraud offences, it is imperative that you seek expert legal advice promptly.

Fraud offences in New South Wales

Fraud alleged to have been committed after February 2010

Extensive changes were made in respect to fraud offences in NSW in 2010. More than 30 offences were replaced with five offences. For detailed information on fraud offences committed after February 2010, see the articles below:

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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