Obtain Financial Advantage By Deception

Obtain Financial Advantage By Deception

In Victoria, Obtaining Financial Advantage By Deception is found in section 82 of the Crimes Act 1958. It is a criminal offence that is committed by a person who has engaged in a deceptive and dishonest conduct which resulted in that person obtaining a financial advantage for themselves or for someone else.

Have you been accused of Obtaining Financial Advantage By Deception? If you have, get in contact with us to arrange a confidential conference with one of our experienced criminal defence lawyers to ask your important questions. Our lawyers have successfully represented many people charged with Obtaining Financial Advantage by Deception. We can prepare a defence strategy for you.
 
Obtain Financial Advantage By Deception
Police Interview
Did you know that before police can formally interview you about the allegation of Obtaining Financial Advantage by Deception, you will be placed under arrest? Do you understand your rights when you are in a police interview? Are you aware of your obligations? It is very important that you seek expert legal advice from our lawyers before attending for a police interview, rather than during or after the interview.

Our lawyers will advise you about what to expect when you arrive at the police station, how to conduct yourself, and whether or not it is in your interests to answer questions in the interview. Our lawyers are also available to attend the police station with you for the interview.

Pleading Not Guilty
Obtaining Financial Advantage by Deception is a complex criminal charge. It might involve for example, unravelling an extensive paper trail. It is the type of charge that requires an experienced criminal lawyer to thoroughly analyse the brief of evidence, and to seek additional evidence that will assist with your successful defence.

When you are pleading not guilty, our criminal lawyers will not only expertly prepare your defence to the charge, we will also ensure that you understand what is involved at each stage of the Court process prior to the final hearing of your matter.

Pleading Guilty
Perhaps the evidence against you is overwhelming. Perhaps you did not exercise your right to silence in your interview with police and made full admissions to the charge of Obtaining Financial Advantage by Deception. If you are pleading guilty to a dishonesty charge you should engage one of our lawyers to represent you at the earliest possible stage.

Our criminal lawyers will always aim to achieve the best possible outcome for you. Sometimes the best possible outcome is a shorter period of imprisonment, sometimes it is avoiding a sentence of imprisonment entirely. Our lawyers will work with you to ensure that your matter is thoroughly prepared, that all supporting materials are put before the Court in mitigation, and advocate on your behalf at Court for the best possible result.

Sentencing
Sentencing in the higher courts of VictoriaSentencing Statistics Pie Chart for Obtaining a Financial Advantage By Deception in the Higher CourtsSentencing in the Magistrates’ Courts of VictoriaSentencing Statistics Pie Chart for Obtain Financial Advantage By Deception in the Magistrates' Courts
Maximum penalty and court that deals with this charge
Obtain financial advantage by deception is an indictable offence, which means that it may be heard in the higher courts; however it is often also dealt with in Magistrates’ Court. The seriousness of the circumstances surrounding the charge will determine where the matter is heard.

A charge of obtain financial advantage by deception is within the limits of the Magistrates’ Court if:

  • The amount that is the subject of the financial advantage does not exceed $100,000;
  • The Magistrate considers the charge appropriate to be dealt with summarily; and
  • The accused consents (sometimes the accused may prefer to have the matter proceed in a higher court – this is something you should seek advice from an expert criminal lawyer on).

What is the legal definition of Obtain Financial Advantage By Deception?”
This offence of obtain financial advantage by deception is governed by section 82 of the Crimes Act 1958 (“the Act”). Pursuant to s 82, an accused person commits the offence of obtaining a financial advantage by deception if they:

  1. Obtained a financial advantage;
  2. Used deceit to obtain the financial advantage; and
  3. Obtained the financial advantage dishonestly.1 (rimes Act 1958 s82. See, e.g., R v Vasic (2005) 11 VR 380).
Examples of Obtain Financial Advantage By Deception
  • When goods are supplied on the basis of the representation that the accused has money and will make payments following delivery of those goods.
  • To proffer a valueless cheque, knowing it to be valueless, in purported discharge of an antecedent debt.
  • Paying a valueless cheque to gain an extension of time in which to pay.
  • To represent dishonestly that a bank draft is a valid order for the payment of an amount and to request a bank to place the proceeds of the draft in a specified account.
The elements
There are three elements that constitute the offence of obtain financial advantage by deception. The prosecution must prove each of them ‘beyond reasonable doubt’ to prove their case against the accused person. If the prosecution is unable to do this, the accused is not guilty of obtaining a financial advantage by deception. As criminal lawyers part of our role (if the case is being contested) is to investigate cases and identify problems in the prosecution case, to show that one or more of the elements are not proven.

Element 1: The accused obtained financial advantage;
The words ‘financial advantage’ are not defined within the Act. They should be given their plain meaning and should not be narrowly construed.2 Financial advantage is not limited to pecuniary advantage or money. A debt, for example, could be caught by the term ‘financial advantage’ and thus fall within the meaning of section 82. An example of this could be the falsification of documents to obtain a loan.

The prosecution also must show that the accused obtained the relevant financial advantage. The accused does not need to have obtained the financial advantage for themselves – it is enough if they obtained it for someone else.3

Element 2: The accused used deceit to obtain the financial advantage
The second element requires the accused to have obtained the financial advantage by deceit.4 If the financial advantage accrues without any deception, no offence is committed. A deception must be the causal link for obtaining the financial advantage. The deception may be deliberate or reckless, it can include an act or omission, or it may be a representation.

Element 3: The accused obtained the financial advantage dishonestly.
In addition to the requirement of deceit in a case of Obtain financial advantage by deception, the prosecution must prove that the accused acted dishonestly. They must prove that the accused was acting dishonestly when they, by deception, obtained the financial advantage.5

This element focuses on the accused’s state of mind.

The leading case on the meaning of the word ‘dishonesty’ under the Act in Victoria is R v Salvo:

In my opinion “dishonestly”, in this statute, is used in that sense of “with disposition to defraud” which means “with disposition to withhold from a person what is his right” and in the special context thus imports into the offence the element that the actor must obtain “the property” without any belief that he himself has any legal right to deprive the other of it.6

So under the Act a key question to be asked when assessing dishonesty is whether the accused person believed they had a legal right to undertake the relevant action.


[1] Ibid.
[2] R v Walsh [1990] 52 A Crim R 80; Matthews v Fountain [1982] VR 1045.
[3] Richardson v Skells [1976] Crim LR 448.
[4] As “deception” has the same meaning in relation to the offence of obtaining a financial advantage by deception as it does for the offence of obtaining property by deception (Crimes Act 1958 s82(2)), cases decided in relation to that offence will be applicable to section 81 of the Act.
[5] R v Salvo [1980] VR 401; Pollard v Cth DPP (1992) 28 NSWLR 659.
[6] [1980] VR 401, 432 (per Fullagar J).


Obtain Financial Advantage By Deception – Possible defences
The offence of obtain financial advantage by deception can raise legal issues in relation to the intention of the accused. If a jury considers that it is reasonably possible that the accused did not intend for the complainant to act upon their representation which in turn allowed them to obtain the financial advantage, then the accused will not be guilty of this offence. Without the requisite intent the offence is not made out. Lack of knowledge is also a defence available to the charge if the accused did not have knowledge that their representation was false (or deceptive) or probably false at the time it was made. In determining this, a jury must be satisfied that the accused themselves knew, or knew of the likelihood that the representation was untrue. The objective reasonable person test is not applied in this instance.

Other defences available include factual dispute, duress, wrongful identification, mental impairment, honest and reasonable mistake or belief or necessity may apply.

In a trial, the questions a judge will ask the jury to consider are:7

  1. Did the accused obtain financial advantage?
    If yes, then he will ask question 2.
    If no, then the accused is not guilty of obtain a financial advantage by deception.
  2. Did the accused obtain financial advantage by deception?
    • 2.1. Did the accused make a false representation?
      (Consider – Did the accused make the representation alleged by the prosecution. Was that representation false when it was made?)
      If yes, then he will ask 2.2.
      If no, then the accused is not guilty of obtain financial advantage by deception.
    • 2.2 At the time of making the representation, did the accused know that the representation was false, or that it was probably false?
      If yes, then he will ask 2.3.
      If no, then the accused is not guilty of obtain financial advantage by deception.
    • 2.3 Did the accused intend that the false representation would be acted upon?
      If yes, then he will ask 2.4.
      If no, then the accused is not guilty of obtain financial advantage by deception.
    • 2.4 Did the accused obtain the financial advantage as a result of making the false representation?
      If yes, then he will ask 3.
      If no, then the accused is not guilty of obtain financial advantage by deception.
  3. Did the accused obtain the financial advantage dishonestly?
    (Consider – Has the prosecution proved that the accused did not believe that he/she had a legal right to obtain the financial advantage?)
    If yes, then the accused is guilty of obtaining financial advantage by deception.
    If no, then the accused is not guilty of obtain a financial advantage by deception.


[7] The following Checklist is taken from Criminal Charge Book, 7.5.2.2.3 – Jury checklist: Obtaining a Financial Advantage by Deception (4 June 2009) Judicial College of Victoria: <http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#30709.htm>.

The Act stipulates that the offence of obtaining a financial advantage by deception (s82 of the Crimes Act 1958) carries a 10 year term of imprisonment as the highest possible sentence. The maximum term of imprisonment that can be imposed in the Magistrates’ Court for a single offence is two years. Further, the maximum aggregate total sentence that can be imposed is five years.8


[8] Australian Legal Information Institute (AustLII). Victorian Current Acts: Crimes Act 1958 Section 82: Obtaining Financial Advantage By Deception <http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s82.html