Charge one: Stealing by clerks and servants; and
Charge two: Fraud – dishonestly obtains property from another; and
Charge three: Fraudulently produces/uses any record which is false; and
Charge four: Fraudulently produces/uses any record which is false; and
Charge five: Stealing by clerks and servants; and
Charge six: Fraud – dishonestly obtains property from another.
Court: Magistrates Court
Date: February 2021
Maximum Penalty: Stealing by clerks and servants – 10 years imprisonment
Fraud – dishonestly obtains property from another – 5 years imprisonment;
Fraudulently produces / uses any record which is false – 10 years imprisonment
Solicitor: Sinead Garland
Our client was an employed as a sales/service manager. In his position, he sold products belonging to his employer, and created invoices on his employer’s computer system. The invoices created detailed our client’s own personal bank account details, so that when the invoice was paid, the money would be deposited into his own bank account instead of his employer’s business account. Our client did this without his employer’s permission/consent and pleaded guilty to all six charges.
With regards to charges one, two and three: The amount defrauded was $8,703.16.
With regards to charges four, five and six: The amount defrauded was $1,281.00 (originally $5,000.00 but our client reimbursed the complainant $3,719.00 before sentence).
At sentence, the Prosecution noted that our client had similar entries on his criminal history for like offending and had previously spend six months in custody for like offending. Having regard to our client’s history, the facts that he was in a position of trust and should have known (having previously spent time in custody for like offending), that there are consequences for acting fraudulently, that a term of actual imprisonment was within range.
The Prosecution also noted that our client wished to partially reimburse the complainant for his wrongdoing and in those circumstances a term of imprisonment with immediate parole may also be within range.
Her Honour expressed concern for our client’s criminal history and further indicated that a term of actual imprisonment was within range and warranted.
Miss Garland then made lengthy submissions to Magistrate summarising our client(s),
Ms Garland made further submissions to Her Honour that that a term of imprisonment with immediate parole was within range and would act as a sufficient penalty to our client and others from committing similar offences.
Her Honour accepted Ms Garland’s submission and sentenced our client to two and a half years imprisonment with immediate parole for both group of charges and ordered that our client pay $1,281.00 in restitution to the complainant (remaining sum defrauded).
CRIMINAL CODE 1899 – SECT 391
(1) A person who fraudulently takes anything capable of being stolen, or fraudulently converts to the person’s own use or to the use of any other person anything capable of being stolen, is said to steal that thing.
(2) A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if the person does so with any of the following intents, that is to say—
(a) an intent to permanently deprive the owner of the thing of it;
(b) an intent to permanently deprive any person who has any special property in the thing of such property;
(c) an intent to use the thing as a pledge or security;
(d) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;
(e) an intent to deal with it in such a manner that it can not be returned in the condition in which it was at the time of the taking or conversion;
(f) in the case of money—an intent to use it at the will of the person who takes or converts it, although the person may intend to afterwards repay the amount to the owner.
(2A) A person who has taken possession of anything capable of being stolen in such circumstances that the thing thereupon is not identifiable is deemed to have taken or converted the thing fraudulently notwithstanding that the property in the thing has passed to the person if, at the time the person transports the thing away, the person has not discharged or made arrangements with the owner or previous owner of the thing for discharging the person’s indebtedness in respect of the thing.
(2B) The presumption provided for by subsection (2A) is rebuttable.
(3) The taking or conversion may be fraudulent, although it is effected without secrecy or attempt at concealment.
(4) In the case of conversion, it is immaterial whether the thing converted is taken for the purpose of conversion, or whether it is at the time of the conversion in the possession of the person who converts it.
(4A) It is also immaterial that the person who converts the property is the holder of a power of attorney for the disposition of it, or is otherwise authorised to dispose of the property.
(5) When a thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or converting the thing does not know who is the owner, and believes, on reasonable grounds, that the owner can not be discovered.
(6) The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.
(6A) For stealing that is a failure to pay an employee, or another person on behalf of the employee, an amount payable to the employee or other person in relation to the performance of work by the employee—
(a) the amount is a thing that is capable of being stolen; and
(b) subsection (6) does not apply; and
(c) the amount is converted to the person’s own use when—
(i) the amount becomes, under an Act, industrial instrument or agreement, payable to the employee or to the other person on behalf of the employee; and
(ii) the amount is not paid.
(7) In this section—
“Act” includes an Act of another State or the Commonwealth.
“industrial instrument” means—
(b) a fair work instrument under the Fair Work Act 2009 (Cwlth) .
“special property” , in a thing, includes—
(a) a charge or lien on the thing; and
(b) a right arising from or dependent on holding possession of the thing, whether by the person entitled to the right or by another person for the other person’s benefit; and
(c) a right of an employee, in relation to the performance of work by the employee—
(i) to be paid the thing; or
(ii) to have the thing paid to another person on behalf of the employee.
CRIMINAL CODE 1899 – SECT 408C
(1) A person who dishonestly—
(a) applies to his or her own use or to the use of any person—
(i) property belonging to another; or
(ii) property belonging to the person, or which is in the person’s possession, either solely or jointly with another person, subject to a trust, direction or condition or on account of any other person; or
(c) induces any person to deliver property to any person; or
(d) gains a benefit or advantage, pecuniary or otherwise, for any person; or
(e) causes a detriment, pecuniary or otherwise, to any person; or
(f) induces any person to do any act which the person is lawfully entitled to abstain from doing; or
(g) induces any person to abstain from doing any act which that person is lawfully entitled to do; or
(h) makes off, knowing that payment on the spot is required or expected for any property lawfully supplied or returned or for any service lawfully provided, without having paid and with intent to avoid payment;
commits the crime of fraud.
Maximum penalty—5 years imprisonment.
(2) The offender is liable to imprisonment for 14 years if, for an offence against subsection (1) —
(a) the offender is a director or officer of a corporation, and the victim is the corporation; or
(b) the offender is an employee of the victim; or
(c) any property in relation to which the offence is committed came into the possession or control of the offender subject to a trust, direction or condition that it should be applied to any purpose or be paid to any person specified in the terms of trust, direction or condition or came into the offender’s possession on account of any other person; or
(d) the property, or the yield to the offender from the dishonesty, or the detriment caused, is of a value of at least $30,000 but less than $100,000; or
(e) the offender is or was an employer of the victim.
(2A) The offender is liable to imprisonment for 20 years, if, for an offence against subsection (1) —
(a) the property, or the yield to the offender from the dishonesty, or the detriment caused, is of a value of at least $100,000; or
(b) the offender carries on the business of committing the offence.
(2B) The Penalties and Sentences Act 1992 , section 161Q also states a circumstance of aggravation for an offence against this section.
(2C) An indictment charging an offence against this section with the circumstance of aggravation stated in the Penalties and Sentences Act 1992 , section 161Q may not be presented without the consent of a Crown Law Officer.
(3) For the purposes of this section—
“property” , without limiting the definition of property in section 1 , includes credit, service, any benefit or advantage, anything evidencing a right to incur a debt or to recover or receive a benefit, and releases of obligations; and
(b) a person’s act or omission in relation to property may be dishonest even though—
(i) he or she is willing to pay for the property; or
(iii) an owner or other person consents to doing any act or to making any omission; or
(iv) a mistake is made by another person; and
(c) a person’s act or omission in relation to property is not taken to be dishonest, if when the person does the act or makes the omission, he or she does not know to whom the property belongs and believes on reasonable grounds that the owner can not be discovered by taking reasonable steps, unless the property came into his or her possession or control as trustee or personal representative; and
(d) persons to whom property belongs include the owner, any joint or part owner or owner in common, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender’s application of the property, had control of it; and
“obtain” includes to get, gain, receive or acquire in any way; and
(f) if a person obtains property from any person or induces any person to deliver property to any person it is immaterial in either case whether the owner passes or intends to pass ownership in the property or whether he or she intends to pass ownership in the property to any person.