Embezzlement By Clerk
In NSW, the offence of Embezzlement by clerk or servants carries a maximum penalty of ten years imprisonment. If the matter is dealt with in the Local Court, the penalties available are subject to limitations depending on the value of the property embezzled:
- If the value exceeds $5,000, the maximum penalty is limited to two years imprisonment and/or 100 penalty units.
- If the value does not exceed $5,000, the maximum penalty is two years imprisonment and/or 50 penalty units.
- If the value does not exceed $2,000 the maximum penalty is two years imprisonment and/or 20 penalty units.
In NSW, a court can impose any of the following penalties for larceny.
- 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 Embezzlement by Clerk:
The offence of Embezzlement by clerk or servants is contained in section 157 of the Crimes Act 1900 which states: “whosoever, being a clerk, or servant fraudulently embezzles, either the whole or any part of, any property delivered to, or received, or taken into possession by him or her, for, or in the name, or on the account of, his or her master, or employer, shall be deemed to have stolen the same, although such property was not received into the possession of such master, or employer, otherwise than by the actual possession of such clerk, or servant, and shall be liable to imprisonment for ten years.”
What Actions Might Constitute Embezzlement by Clerk?
- There must be a theft of property. For an offence under this provision, the property taken must be something tangible and must have some value. For example, it could include a cheque but would not include information.
- The property taken must belong to the offender’s ‘master’ or ‘employer’. This is generally taken to be an employer, which could be a single person, a company or a corporation. By law you are a ‘clerk or servant’ if you are “bound to obey the orders of [your] employer,” that is, you are under their control: R v Negus.
- The section sets out that property would be deemed to be ‘stolen’ if it was “delivered to, or received, or taken into possession … for, or in the name, or on the account of his or her master or employer”if the master or employer did not receive that property.
- Embezzlement vs Larceny:the difference between embezzlement and larceny relates to the possession of the property when it is being taken. If the property was in possession of the master or employer when taken, this is larceny. Where the property is taken by the clerk or servant before the master has possession, it is embezzlement: R v Davenport  1 All ER 602.
- A simple example of this would be to say that an employee taking money out of the till is larceny. Embezzlement would have occurred if an employee received the money from goods sold (on behalf of the employer) and then took possession that money before it reached the till.
What the Police Must Prove?
- You were a ‘clerk’ or ‘servant’ of the owner of the property at the time of the offence.
- That you:
- Had delivered to; or
- Took into your possession
- Property for, in the name of, or on account of the master/employer; and
- You fraudulently embezzled that property.
Possible Defences for Larceny By Clerk
Which Court Will Hear Your Matter?
This will depend on the value of the property alleged to have been taken.
If the value of the property exceeds $5,000, it is a Table 1 offence. This means that the matter will likely be dealt with in the Local Court, however the DPP or the defendant can elect to have the matter dealt with in the District Court.
If the value of the property is does not exceed $5,000, it is a Table 1 offence. This means that the matter will also be likely to be dealt with in the Local Court; however, the DPP can elect to have the matter dealt with in the District Court.
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.
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.