The NSW Sentencing Council report on Fraud features a useful overview of fraud and identity offences.
Fraud offences
The general fraud offences: s 192E of the Crimes Act
The general fraud offences are found in s 192E of the Crimes Act. This provides that a person is guilty of fraud if they, by deception, dishonestly: • obtain another’s property, or • obtain a financial advantage or cause a financial disadvantage. The maximum penalty is 10 years’ imprisonment.
Section 192E and the remainder of part 4AA of the Crimes Act commenced in 2010.2 The provisions in part 4AA replaced over 30 existing offences, which targeted specific fraudulent conduct
Other offences under part 4AA of the Crimes Act
The other offences under part 4AA apply when: a person dishonestly destroys or conceals an accounting record with the intention of obtaining another’s property or obtaining a financial advantage or causing a financial disadvantage – maximum penalty: 5 years’ imprisonment4 a person dishonestly makes or publishes (or concurs in making or publishing) any statement (whether or not in writing) that is false or misleading, with the intention of obtaining another’s property or obtaining a financial advantage or causing a financial disadvantage – maximum penalty: 5 years’ imprisonment, and an officer of an organisation, with the intention of deceiving members or creditors about its affairs, dishonestly makes or publishes (or concurs in making or publishing) a statement (whether in writing or not) that to their knowledge may be false or misleading – maximum penalty: 7 years’ imprisonment.
Other fraud and fraud-related offences in the Crimes Act
In addition to the main fraud offences in part 4AA, there are several other fraud and fraud-related offences in the Crimes Act.
Stealing and similar offences
Part 4 of the Crimes Act covers stealing and similar offences, including larceny and embezzlement. There is some overlap between these offences and fraud.
Larceny is a crime where a person takes and carries away another’s property, with the intention of permanently depriving them of it. A key element is “fraudulent intent”, which means the person did not believe they had a legal right to the property. However, larceny does not require deception.
If a person is charged with fraud under s 192E of the Crimes Act, an alternative verdict is a conviction for larceny and vice versa. The offence of fraudulent appropriation is an alternative verdict to a charge of larceny.
There are several specific fraud and fraud-related offences in part 4 of the Crimes Act. Many of these offences predate the 2010 reforms that introduced s 192E and cover specific fraudulent conduct. One example is embezzlement, which involves the fraudulent appropriation of property by a person to whom it has been entrusted. These offences include where: • a person in temporary possession of property fraudulently takes or converts that property, for their own, or others’ use11 • a “clerk or servant” (that is, an employee) steals or embezzles property, and • a “public servant” (that is, a person employed in the Public Service) steals or embezzles property.
The maximum penalties for these offences vary, and include 10 years’ imprisonment, 5 years’ imprisonment, 3 years’ imprisonment,16 and 1 year’s imprisonment.
Identity offences
In addition to part 4AA, the Crimes Act includes offences that criminalise the misuse of a person’s identification information. Identification information includes a name or address, driver licence, passport, credit card or digital signature.
Making, supplying or using such identification information, with the intention of committing an indictable offence, carries a maximum penalty of 10 years’ imprisonment. Possessing identification information for this purpose carries a maximum penalty of 7 years’ imprisonment. The relevant indictable offence could be any offence and does not necessarily have to be a fraud or fraud-related offence.
There is also an offence of possessing equipment to make a document that contains identification information. The maximum penalty is 3 years’ imprisonment.
Forgery offences
Forgery involves making or using false documents. The Crimes Act contains some general forgery offences.
The main forgery offence is making a false document to induce another person to accept it as genuine, and thereby obtain another’s property, obtain financial advantage or cause financial disadvantage, or influence the exercise of a public duty. The maximum penalty is 10 years’ imprisonment.
There are also offences of using or possessing a false document, knowing it is false, which also carry maximum penalties of 10 years’ imprisonment.
A further offence involves making or possessing equipment for making false documents, which carries a maximum penalty of 10 or 3 years’ imprisonment, depending on whether the person intends to use the equipment to commit a forgery offence.
Other offences
The Crimes Act includes various other fraud and fraud-related offences, across different parts. Some of these include: • making false or misleading statements to obtain an authority such as a licence, permit or registration, or in an application to obtain a benefit, and • producing false or misleading documents to comply with a state law.
There are also offences contained in the part of the Crimes Act that deals with crimes against property which may also be classified as fraud or fraud-related. The offence of dishonestly destroying or damaging property “with a view to making a gain” is subject to a maximum penalty of 7 years’ imprisonment. When that offence is committed and the destruction or damage is caused “by means of fire or explosives”, the maximum penalty is 14 years’ imprisonment.
Fraud and fraud-related offences in other legislation
There are numerous fraud and fraud-related offences in legislation other than the Crimes Act. These relate to the many provisions that require statements, documents or other information to be supplied in order to obtain certain benefits, including, for example, a payment, grant or licence. This carries with it a risk of fraudulent conduct.
Some of these statutes also cover the conduct of employees, employers, contractors and public officers. These people often have access to information or control of money or decisions, that they could fraudulently use for their, or others’, benefit.
These offences cover specific conduct and situations relevant to the subject matter of the statute. However, the conduct may also be captured by the broad fraud offence in s 192E, or one of the other fraud, stealing, identity or forgery offences in the Crimes Act (see above).
In discussing s 192E the Council states
Our survey of cases in the Local Court shows a broad range of offending charged under s 192E. For example, in addition to high level frauds involving accounting and low level offences involving credit cards (in particular tap and go offences), there is:
• failure to provide goods and services by car repairers
• tradespeople performing work they were not licensed or qualified to do
• renting houses for use as drug premises
• failure to pay for accommodation, meals, or petrol
• dishonestly cashing in TAB and casino tickets
• selling non-existent goods (like concert tickets) on online trading platforms
• making false insurance claims
• falsely stating that proceeds from a barbecue would be given to a local sporting team
• using false identity documents to obtain goods on credit
• submitting false time sheets as an employee
• seeking refunds for goods that had not been purchased
• using another person’s prescription to obtain a restricted substance, and
• acting as a rideshare driver without authority.
Because their coverage is so broad, the s 192E offences account for both the most charges and the most finalised charges for fraud and fraud-related offences.
In 2019, 19,125 charges (for state and federal offences) were finalised in NSW courts in relation to fraud, deception and related offences. The most frequently charged state offence was the offence of dishonestly obtaining property by deception under s 192E(1)(a) with 6824 charges. This was followed closely by the offence of dishonestly obtaining financial advantage or causing financial disadvantage by deception under s 192E(1)(b), with 6502 charges. These two offences represent 70% of all fraud and fraud-related charges in 2019.
In 2021, of the 12,425 finalised charges in the Local Court for fraud and fraud-related offences in the Crimes Act, 10,263 (83%) were for offences under s 192E. There were only 2162 finalised charges for the other fraud and fraud-related offences.
