Fraud in Victoria includes a number of offences which involve deception, including the offence of obtaining property by deception.
Obtaining property by deception is covered under section 81 of the Crimes Act 1958 (VIC) which states that it is a crime for a person to act deceptively and with dishonesty obtaining or acquiring any property which belongs to someone else. The offence requires an intention to permanently deprive the rightful owner of the property.
The crime of obtaining property by deception carries a maximum penalty of ten years’ imprisonment which makes it a level 5 imprisonment offence.
What is deception?
The term deception is given a particular legal meaning when discussing fraud in Victoria. Deception is defined in section 81(4) of the Crimes Act 1958. It includes words or conduct as to matters of fact or law that are deceitful about the true nature of things.
One example is deceiving or misleading someone about what you are intending to do in a particular act.
The law also expressly provides that it is deceitful to do something with a machine or a computer with the intention to make it respond in a way which you do not have the authority to do. For example, it would be deceitful to use somebody else’s bank card and PIN to withdraw money from an Automatic Teller Machine (ATM) without that person having first authorised you to do so.
In order to be considered deception, the accused’s conduct or words must be either intentional or reckless. To behave in a reckless way is essentially to say or do something knowing that there is a substantial risk that it might be deceptive, but carrying on anyway.
It is also necessary for the deception to actually play a part in obtaining the property. That is, there must be a cause and effect relationship between the deception and property actually being obtained.
What is dishonesty?
For fraud related offences in Victoria, the word ‘dishonesty’ also carries a particular meaning. A person behaves dishonestly if they purposefully obtain an item of property without the genuine belief that they had a legal right.
For the purposes of fraud in Victoria, a person is considered to have obtained property if they have taken ownership, possession or control of that property. This extends to third parties to include circumstances where a person obtains property for somebody else or enables somebody else to obtain or retain another’s property.
The term property is given a wide meaning under section 71 of the Crimes Act 1958. It includes all real and personal property, and specifically includes money and intangible property.
The property that is obtained must belong to another. Property will be considered to belong to somebody else when that person has possession or control of it, or has a legal right or interest in the property. This is in comparison to property which has clearly been abandoned.
Obtaining a financial advantage
Closely related to the offence of obtaining property by deception is the offence of obtaining a financial advantage by deception. This offence is found in section 82 of the Crimes Act 1958.
The offence of obtaining financial advantage by deception is committed when a person deceives another in order to dishonestly obtain a monetary advantage. This could be for either themselves or somebody else.
The maximum penalty of 10 years’ imprisonment also applies.
The requirements of deception and dishonesty have been given the same meaning as the other offences of fraud in Victoria. The term financial advantage has been given a broad interpretation. It essentially means something that improves the financial situation of the person in question.
Other offences of fraud in Victoria
There is a range of offences related to fraud in Victoria under Division 2 of the Crimes Act 1958. These include:
- False accounting (section 83);
- Falsification of documents (section 83A);
- False statements by company directors (section 85);
- Suppression of documents (section 86); and
- Blackmail (section 87).
Each of these offences apply in particular factual circumstances, involve different legal elements, and have different maximum penalties. It is therefore particularly important to seek legal advice if you are charged with an offence related to fraud in Victoria.