Fraud/ obtain benefit by deception

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining a non-conviction or section 10.

Obtain benefit by deception can be punished with a prison sentence of up to 2 years (if heard in the Local Court) or up to 10 years (If heard in the District Court).

Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.
A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.
National Criminal Lawyers have defended thousands of people charged with obtain a benefit by deception and are experts at these hearings.

Some of the possible defences available for those charged with obtain a benefit by deception can include:

• That you were not dishonest;
• That there was no deception;
• That you did not obtain any advantage or cause any disadvantage
• If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”;
• If your actions were necessary to prevent a greater harm from occurring, you may have the defence of “Necessity”;
• If you were defending yourself or another OR yours or another’s property you may have a Defence of “Self-Defence”

The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:

“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.

For obtain benefit by deception 46% of offenders received a custodial sentence whereas 33% received a good behaviour bond.

In NSW, a court can impose any of the following penalties for a obtain a benefit by deception charge.

• Prison sentence
• Home Detention
• Intensive correction order (previously periodic detention)
• Suspended sentence
• Community service order (CSO)
• Good behaviour bond
• Fine
• Section 10

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

• Full time Imprisonment
• New ICO (ICO) with a home detention condition available
• New Community Correction Order (CCO)
• Fine
• New Conditional release Order (CRO)

Fake Customer Accounts

One of our Senior Defence lawyer represented a 21-year-old man who was charged with obtaining benefit by deception. The man had been working together with others who were creating fake customer accounts to obtain commissions. In Court our office submitted that his client’s criminality was less apparent than other not dissimilar cases as in this case their supervisor was the one who ensured they participated in the scheme. Moreover, it was successfully argued that he continued the criminal behaviour whilst acting under a degree of duress and necessity in that he was told that he would lose his job if they ceased the corrupt operation. In Court our client successfully argued that this was a special circumstances case and this man despite the massive mistake should be allowed to proceed with his life. Moreover, evidence was given that the client plead guilty and made admissions early, obtained references and wrote a heartfelt letter of apology. The client had also made attempts on our advice to re-pay the full amount back to the victims. The Magistrate after a very long deliberation agreed with our lawyer’s submissions and dismissed the charges pursuant to section 10 meaning no conviction was recorded.

Case Study

Our Senior Defence lawyer represented a 46-year-old woman who was charged with five counts of obtaining benefit by deception. The total amount when taken together equalled the sum of $79,598.51. The client had been using Westpac cheques from her own account which were made out as cash payable in moderate to large sums. The cheques (23 in total) were used to defraud western union and the Australian post office. The client did this knowing it takes some days to have the cheques processed/cleared. At all material times the client knew that there was not enough money in the Westpac bank to clear the false cheques.

Prior to Court Our Senior Lawyer received instructions from the client to the effect that she was guilty and as such decided to write representations to the police to plea bargain/reduce the charges. In written submissions Our Senior Lawyer put to the prosecution an offer that if the client were to plead guilty to only two charges and not five the matter could be dealt with in a way which would save court time and witnesses having to come to court. The prosecution eventually agreed to the plea bargain and thus the five charges became only two. The fact sheet was then amended and all prejudicial parts (except for the two charges) were removed. Upon this occurring the matter was dealt with by way of an early Guilty Plea. Our focus then became keeping the client out of full time custody. In Court Our Senior Lawyer made submissions that this was a case where a community-based sentence would be of best value to the victims as sending her to full time gaol would result in a delay in repaying back the amounts owed. It was further put that it was not a very sophisticated crime in that she was always going to be caught given she used her own name and cheques. Our Solicitor finally ask the Court if the offender could have the benefit of an assessment for the community based Intensive Corrections Order (ICO). The Judge agreed to the assessment and the client was assessed as suitable.

No Jail for over $500,000 Fraud

The team at National Criminal Lawyers® is not only proud but grateful to have received a result recently that has not been ever seen.

Our client was charged with more than 100 offences of dishonestly obtain financial advantage by deception and deal with proceeds of crime in the amount of more than $500,000.

These offences carry a maximum penalty of 10 and 5 years imprisonment respectively.

The Facts

The allegations were that our client dishonestly obtained donations from her employer and then sold the donated items at Sydney markets for cash. She retained the cash payments in her personal name. In addition, as an employee of the organisation, it was alleged that our client’s role consisted of liaising with external stakeholders persuading and assist with the obtaining of the donations.

How these cases are generally dealt with

Given the amount alleged to have been frauded and the significant number of charges, the superior Courts have often said that a full-time custody sentence must be imposed. There are of course exceptions, however these exceptions do not ordinarily succeed in favour of the offender.

What did our lawyers do?

Prior to Court, our lawyers at National Criminal Lawyers wrote representations to the NSW police to plea bargain/reduce the charges. In our written submissions to the police, we proposed an offer to the prosecution that if our client were to plead guilty, the matter should be kept in the Local Court rather than the District Court with some of the offences placed on Form 1.

After many discussions the prosecution ultimately agreed with our representations, reducing the offences to nearly half the original charges, remaining with 55 offices and the matter was kept in the Local Court.

Nevertheless, our team of lawyers at National Criminal Lawyers did not stop there.

The Sentence

On the day of sentencing, we submitted that instead of a full-time custodial sentence which is generally common in this time of offence of this magnitude, an Intensive Correction Order (ICO) should be imposed instead, taking into account the subjective circumstances of our client and that she had already served some time in custody having been bail refused before our office successfully got our client bail.

The prosecution relied on Criminal Court of Appeal Cases, one of which was Scott v DPP (NSW) [2015] NSWCA 60 which involved an offender who had a significant criminal history in relation to dishonestly offences. Our lawyers submitted to the Court that our client’s case is clearly distinguishable; in that our client had no prior criminal history and was otherwise a person of good character.

The prosecution also fought hard and relied a further case of Itaoui v R [2006] NSWCCA 273. Our rebuttal to this case related to the level of sophistication of the offending and breach of trust involved in Itaoui was much higher than the present matter. For in Itaoui the offender was trusted implicitly with a trust account. But in the present case our client’s role was limited to their role as an employee without any additional relationship of trust in effect.

Further we submitted that Itaoui was decided under a different sentencing regime where the only alternative to full time custody was a suspended sentence (which has now been repealed). But in our client’s case the Court had the option available at sentencing our client to an order that a period of imprisonment be served by way of ICO which provides an alternative to full time imprisonment and is capable of incorporating a very real and signification degree of punishment and deterrence to others.

Our lawyers further submitted that the length of the indicative sentence does not limit the Court’s power to order that a period of imprisonment be served by way of ICO. In addition, our lawyers also addressed that a home detention condition should not be imposed as part of our client’s ICO unless an assessment report relating to the imposition of such a condition is before the Court.

The Result

NCL wins.

The Court ultimately agreed with our lawyers and granted our client an ICO. Not only does this ensure that our client can seek treatment in the community, but it also means that our client can start a fresh new beginning and not spend any time in full time custody.