Intention to Deceive Members or Creditors by False or Misleading Statement of Officer of Organisation

In NSW, intention to deceive members or creditors by false or misleading statement by an officer of that organisation is a serious offence that attracts a maximum penalty of seven (7) 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
• Fine
• Section 10A
• Conditional Release Order (CRO)
• Section 10

The Offence of Intention to Deceive Members or Creditors By False or Misleading Statement of Officer of Organisation:

The offence of ‘intention to deceive members or creditors by false or misleading statement’ is set out in section 192H of the Crimes Act 1900 which states: “an officer of an organisation who, with the intention of deceiving members or creditors of the organisation about its affairs, dishonestly makes or publishes or concurs in making or publishing, a statement (whether or not in writing) that to his or her knowledge is or may be false or misleading in a material particular is guilty of an offence.”

What Actions Might Constitute Intention to Deceive Members or Creditors 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.

Common examples of “intention to deceive members or creditors by false or misleading statement” are:-

• Making a statements to shareholders/members with false information that has the effect of making a company seem more profitable; or
• Alternatively; making a statement to make the company appear in debt, to avoid repaying debts to creditors.

Unlike other fraud related offences in the Crimes Act the Prosecutor does not have to show that the statement is false and/or misleading, only that the statement may be false or misleading. That is a very low threshold to prove.

It is important to note that under s192H(2) an “officer” for the purposes of this section includes: any member who is concerned in the management of an organisation and any person who presents themselves as an officer of an organisation, even if they are not one.

What the Police Must Prove:

To convict you of “intention to deceive members or creditors by false or misleading statement”, the Prosecution must prove each of the following elements beyond reasonable doubt:

• That you were an officer of an organisation; and
• You dishonestly:
  • Made or published; or
  • Concurred in the making or publishing of;

• A statement that is or may be false or misleading in a material particular; and
• You did so with the intention of:-
  • Deceiving members or creditors of that organisation.

Possible Defences for this Charge:

• Claim of Right;
• Factual Challenge – that is, that it did not occur;
• It is also an defence to this charge if the Prosecution are unable to prove one or more of the above elements beyond reasonable doubt.

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:

Jail: This is the most serious penalty and involves full time detention in a correctional facility. Read more.

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.

Fines: When deciding the amount of a fine the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10A: A section 10A is a conviction, with no other penalty attached to it. 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.