An Honest Discussion about Fraud

The law in Victoria provides for several offences relating to fraud. Whilst some of the offences have similarities to theft offences, there is an added element of dishonest conduct in obtaining the property or financial benefit. In this article, we discuss the first two categories of fraud – obtaining property by deception and obtaining financial advantage by deception.

Categories of Fraud Offences

The legislation outlines 2 fraud offences involving deception:

1. Obtaining property by deception;[1] and
2. Obtaining financial advantage by deception.[2]

Obtaining property by deception is when an individual receives property or goods, via deception, that they do not own or have rights to. ‘Deception’ includes the use of words or conduct such as lies, false statements or impersonation to convey specific facts or legal rights. For example, if you steal credit card details on the internet and subsequently use the card data to buy items online, you could be charged with obtaining property by deception. The offence includes obtaining property or goods for the benefit of another person.[3]

Similarly, a financial advantage by deception is where an individual engages in deception via dishonest actions in order to obtain a financial advantage for themselves or a third party. If you use fake PayPal accounts to falsify listings and obtain money from people, you could be charged with obtaining a financial advantage by deception.[4]

Other fraud offences covered by the legislation include:

• False accounting;
• Falsification of documents;
• Fraud by company directors, including false statements and liability for fraud offences by a company;
• Concealing or suppression of documentation; and
• Blackmail[5]

Elements of the Charges

For an obtaining property by deception charge, the Police must prove that:

• You obtained property or goods that did not belong to you by deception;
• The conduct used to obtain the property or goods was dishonest;
• You gained ownership, control or possession of the property or goods, or did so for another person; and
• The owner was permanently deprived of their rights to the property.

For an obtaining financial advantage by deception charge, the Police must prove that:

• You engaged in deception;
• You acted dishonestly; and
• resulted in you obtaining a financial advantage for the benefit of yourself or another person.

Fraud Defences

Obtaining property by deception

It is a defence to argue that you were not the person who committed the offence. Further, you can argue that you did not have a dishonest intention, or did not intend to permanently deprive the owner. It is also a defence that you were under a mistaken belief as to the ownership of the property.  You can also allege that the owner of the property or goods was not permanently deprived of the items.

Obtaining financial advantage by deception

You can argue that you did not act dishonestly, had a lack of intention to deceive or had a mistaken belief that your conduct was dishonest.[6] For example, if you can prove that you understood the representations made were true. A further defence exists if you do not reasonably believe that the alleged victim would act upon your dishonest conduct, which enabled you to obtain the financial advantage. You can also argue that you did not receive a ‘financial advantage’ as a result of your conduct. However, the offence covers circumstances where you received a financial advantage for someone else.

Penalties

The maximum penalty for obtaining property by deception or obtaining a financial advantage by deception is 10 years in prison.[7]

We suggest that you should contact an experienced legal practitioner as soon as possible if you are to be interviewed in relation to these offences so that you can be provided with appropriate advice based on the circumstances relevant to your matter.

[1] Crimes Act 1958 (Vic) s 81
[2] Crimes Act 1958 (Vic) s 82.
[3] Crimes Act 1958 (Vic) s 81(2).
[4] See Boyton v The Queen [2016] VSCA 13.
[5] Crimes Act 1958 (Vic) ss 83-87.
[6] R v Salvo [1980] VR 401.
[7] Crimes Act 1958 (Vic) ss 81(1) and 82(1).