In New South Wales, fraud offences have significantly increased in recent times, largely due to a rise in the availability of cyber-enabled means to commit offences.

Cyber-enabled fraud has risen by 95% in a 3-year period, as reported by the New South Wales Bureau of Crime Statistics and Research, with this essentially referring to the use of online services or computers to commit fraud or to deceive victims into sending money or goods.

It has also been estimated that Australians across the country have lost $3.1billion to scams in 2022.

Fraud is an offence as outlined within section 192E of the Crimes Act 1900 (NSW).

This section details that a person who, by any deception, dishonestly obtains property belonging to another, or obtains any financial advantage or causes any financial disadvantage, commits an offence.

Therefore, the elements that the Prosecution must prove beyond reasonable doubt are that:

1.     You, by deception,

2.    Obtained property belonging to another, or

3.    Obtained a financial advantage or caused a financial disadvantage, and

4.    You did so dishonestly, and

5.     You knew the actions were dishonest.

Deception essentially means any deception, including by words or conduct, as to fact or as to law.

It may be reckless or intentional.

Conduct that may result in deception includes where a person uses an electronic device(i.e., computer or other machine) to make a response that the person is not authorised to cause it to make.

For example, the most common form of deception would be where a person is deceived by another’s false statement or representation.

Obtaining a financial advantage will include obtaining it for yourself or another person, as well as inducing a third person to do so. The financial advantage may be permanent or temporary.

The same principles apply to situations where a financial disadvantage is caused.

Whether you did something dishonestly will be judged upon the standards of ‘ordinary people’.

This involves community-based moral judgements, with it a question of fact as to whether the actions were done dishonestly.

It is also required that you knew the actions were dishonest, in accordance with this standard.

Notably, the Act provides that actions related to obtaining may be dishonest, even where the person is willing to pay for the property.

A maximum penalty of 10 years imprisonment is applicable to this offence.

However, it is important to note that it is classified as a ‘table 1’ offence.

‘Table1’ offences are to be dealt with summarily in the Local Court, unless the prosecution or accused person elects for the matter to be heard in the DistrictCourt.

In the Local Court, the maximum penalty that the court can impose is limited to 2years imprisonment and/or a $11,000 fine, for a single offence, and 5-years imprisonment for multiple offences.

In determining a sentence, the court has identified factors of ‘universal application’ to fraud offences.

These include considering the amount of money involved, the length of time over which the offences occurred (if there are multiple instances), the motive for the crime, the degree of planning and sophistication involved, as well as whether there was an accompanying breach of trust.

A breach of trust refers to where an offender acts in a way which is contrary to what they have been engaged to do. Examples include where an employee defrauds his employee, or a solicitor misappropriates funds held on trust for their own use.

In such cases, the court has held that those who abuse trust should be dealt within a manner to ensure that ‘other professionals will be left in no doubt that serious consequences will follow’.

‍