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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 (WA)


Fraud in Western Australia is contained in section 409 of the Criminal Code. The most common type of fraud occurs where a person obtains property from another person by deceit or by any dishonest means with the intention to defraud. Obtaining property simply means having had possession of the property and does not require the accused to have retained the property permanently.

Examples of fraud in Western Australia that fall within the ambit of section 409 include where a person has the intention to defraud, and, by fraudulent conduct or deceit:

  • induces another person to deliver property to a third person;
  • gains a benefit for any person;
  • causes a detriment to any person;
  • induces a person to do something that they are lawfully entitled to refrain from doing; or
  • induces a person not to do an act that they are lawfully entitled to do.

Penalties For Fraud In Western Australia

The maximum penalty for fraud is generally imprisonment for seven years. However, if the person deceived is over the age of 60 then the maximum penalty increases to imprisonment for 10 years.

Intention To Defraud In Western Australia

To be found guilty of fraud in Western Australia, the accused must have acted with an intention to defraud. This essentially means that they acted with the intention of behaving in a dishonest way, as opposed to committing the act accidentally or with an innocent intent.

This is determined by a subjective test. That is, the court will look at what the accused person actually intended and not what a reasonable person in their situation might have intended.

The offence of fraud applies only in situations that have a ‘commercial flavour’ – that is, when the accused’s intention to deceive is in relation to a victim’s economic interests or public duties. Dishonestly inducing a person to do an act (or not do an act) does not amount to fraud where that act affects only non-economic interests – for example, social relationships.

Defences

The defences that are most commonly raised in relation to fraud in Western Australia are:

  • that the accused had an honest claim of right to the property under s 22 of the Criminal Code; and
  • that the accused made an honest and reasonable mistake of fact under s 24 of the Criminal Code.

An honest claim of right exists when a person is charged with fraud over something they have done in relation to property, but where they were acting under an honest belief that they had a genuine legal right to the property and therefore did not have any intent to defraud. This is a complete defence, and an accused will not be found guilty of fraud if they had an honest claim or right.

An honest and reasonable but mistaken belief of fact occurs when a person does an act under an honest belief about something that turns out to be mistaken. This is not a complete defence. Instead, a person will be judged as though the beliefs they held were true and will not be held criminally responsible for their act except to the extent that they would have been if those beliefs had been true.

If you are charged with fraud and you believe that either of these defences applies to you, it is important that you seek legal advice as soon as possible.

Summary Conviction

Less serious fraud offences may be dealt with summarily (in the Magistrates Court) in Western Australia. This means that a lower maximum penalty will apply. The maximum penalty when fraud is dealt with summarily is two years imprisonment and a fine of $24,000. If the victim is over the age of 60 then the maximum penalty increases to imprisonment for three years and a fine of $36,000.

A charge of fraud cannot be dealt with summarily if the amount of money or property involved is more than  $50,000.00.

Alternative Offences To Fraud In WA

If a person is charged with fraud in Western Australia, the offences of stealing, possessing stolen property and receiving stolen property are recognised as ‘alternative offences’. This means that the person may be found guilty of any of those alternative charges instead of being found guilty of fraud.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

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