Intention to Defraud by False or Misleading Statement
In NSW, intention to defraud by false or misleading statement is a serious offence that attracts a maximum penalty of five (5) years imprisonment. A Court in NSW can impose any of the following penalties for this charge:-
- Prison Sentence
- Home Detention
- Intensive Corrections Order (ICO)
- Suspended Sentence
- Community Service Order (CSO)
- Community Corrections Orders (CCO)
- Good Behaviour Bond
- Section 10A
- Conditional Release Order (CRO)
- Section 10
The Offence of Intention to Defraud By False or Misleading Statement:
The offence of ‘intention to defraud by false or misleading statement” is set out in section 192G of the Crimes Act 1900 which states: “a person who dishonestly makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) that is false or misleading in a material particular with the intention of: (a) obtaining property belonging to another; or (b) obtaining a financial advantage or causing a financial disadvantage, is guilty of an offence.”
What Actions Might Constitute Intention to Defraud By False or Misleading Statement?
Section 192B of the Act outlines the definition of “deception.” Deception is broadly defined, and you can be said to have deceived someone through words or any other conduct.
- Deception covers trying to deceive someone either as to a particular fact or as to the law.
- Deception also covers actions by you that cause a computer, machine or electronic device to do a thing that you are not authorised to do.
- Deception can be made out if your actions were either intentional or reckless.
Section 192C of the Act outlines the definition of “obtains property”. Importantly, you do not have to obtain the property for yourself only to be guilty of an offence under this section. Rather, it is also an offence under this section if you enables someone else to obtain “ownership, possession or control” of the property.”
Similarly to the above, you can still be found guilty of an offence under this section if you obtain a financial advantage for someone other than yourself. Furthermore, it is still an offence under this section if you induce a third person to do something that results in: you or another obtaining a financial advantage; or another person suffering a financial disadvantage.
- It does not matter whether the financial disadvantage is permanent or temporary.
Common examples of intention to defraud by false or misleading statement are:-
- Publishing statements to shareholders with false information that has the effect of making a company seem more profitable;
- Where you are a contractor or casual employee – making a representation (written or otherwise) about the number of hours worked to obtain more money than you are entitled to;
- Alternatively, if you are an employer of contractors or casual workers – making a representation reducing the number of hours a particular person has worked, to avoid paying money owed.
What the Police Must Prove:
To convict you of “intention to defraud by false or misleading statement”, the Prosecution must prove each of the following elements beyond reasonable doubt:-
- That you:
- Made or published; or
- Concurred in the making or publishing of;
- Any statement that is false or misleading in a material particular; and
- You did so with the intention of:-
- Obtaining a property belonging to another;
- Obtaining a financial advantage; or
- Causing a financial disadvantage
Possible Defences for Intention to Defraud By False or Misleading Statement:
- Claim of right
- It is also a defence to this charge if you can show that any statement made by you: was not false or misleading; did not cause a financial disadvantage; or did not cause you to obtain property or a financial advantage.
Which Court Will Hear Your Matter?
This offence is a Table 1 offence. This means that your matter will likely be dealt with in the Local Court. However, either the Prosecutor or you can elect to have the matter dealt with in the District Court. If the matter is finalised in the District Court, this will give rise to harsher penalties.
Types of Penalties:
Home Detention: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.
Intensive Corrections Order (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.
Suspended Sentence: As a result of amended legislation this penalty was repealed on 24 September 2018. This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.
Community Service Order (CSO): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.
Good Behaviour Bond: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.
Community Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.
Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. Read more.
Section 10 avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.