Obtain Financial Advantage By Deception

MoneyThe offence of obtain financial advantage by deception was created for cases where the accused dishonestly obtained credit or services.1 This charge is generally laid in circumstances where a person engages in deceptive and dishonest conduct. As a result of that conduct the accused obtained a financial advantage for themselves or someone else.

Obtaining financial advantage by deception can be a very serious offence and it is possible for the court to impose a term of imprisonment if you are found guilty. As this charge covers a wide variety of behaviour the result will depend on the circumstances, particularly the amount involved and the nature of the deception itself.

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.
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.2 (rimes Act 1958 s82. See, e.g., R v Vasic (2005) 11 VR 380).
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.3 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.4

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.5 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.

GavelElement 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.6
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.7

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.

In a trial, the questions a judge will ask the jury to consider are:8

  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.
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.
 
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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).

The Act stipulates that the offence of obtaining a financial advantage by deception 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.9

Sentencing for Obtain Financial Advantage By Deception

Cases of Obtaining a Financial Advantage By Deception may be sentenced in the Magistrates’, County, and Supreme Courts. Sentencing outcomes may range from immediate custodial sentences to various forms of non-custodial sentences. As mentioned under the Jurisdictional Limits section above, the maximum term of imprisonment that may be imposed varies depending on the type of court hearing the case. Ultimately, the circumstances surrounding the charge will determine the severity of the sentence.

Apart from imprisonment, home detention order was also a custodial sentence previously available for the charge of Obtain Financial Advantage By Deception. This was however abolished in 16 January 2012 although all home detention orders imposed before this date continued to run until their completion.10

Non-custodial sentences include fine and adjourned undertaking. Suspended sentences used to be available but they were abolished in the higher courts for all offences committed on or before 1 September 2013, and in the Magistrates’ Courts for all offences committed on or before 1 September 2014. Community-based order was also a sentence previously available but it was replaced by community corrections order on 16 January 2012.11

Sentencing in the Magistrates’ Courts

In the Magistrates’ Courts, a total of 1,134 cases (2,738 charges) were heard from 1 July 2016 to 30 June 2019. Majority of these cases also resulted in Imprisonment (42.0%) followed by Community Correction Order (29.3%).

Other penalties imposed were: Fine (14.1%), Adjourned Undertaking/Discharge/Dismissal (10.8%), Other Sentencing Forms (1.9%), Wholly Suspended Sentence (1.1%), Youth Justice Centre Order (0.6%), and Partially Suspended Sentence (0.3%).

Of the cases that led to imprisonment, majority were sentenced to a term that was between 3 and 6 months (28.4%). The longest prison term imposed was 36+ months (0.6%).

For CCO terms, majority of the charges that led to CCO were sentenced to somewhere between 12 and 18 months (62.4%, non-aggregate). The longest CCO term imposed was 24+ months (10.3%, non-aggregate).12

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.13

Sentencing in the higher courts

Higher Court 
From 1 July 2013 to 30 June 2018, there were 187 cases (1,121 charges) of Obtaining a Financial Advantage By Deception that were heard in the higher courts of Victoria. Half of these cases resulted in Imprisonment (50.3%) while the rest led to various other forms of penalties:

  • Community Correction Order (CCO) – 16.6%
  • Wholly Suspended Sentence – 16%
  • Fine – 12.8%
  • Partially Suspended Sentence – 3.2%
  • Adjourned Undertaking/Discharge/Dismissal – 1.1%

Of the prison terms imposed, majority fell somewhere between 4 and 5 years (21.3%). The longest term imposed was between 11 and 12 years (1.1%) although this was among the least imposed period of imprisonment.

Of the cases that led to CCO, majority fell under the “1 < 2 years" category (32.3%). The highest CCO term handed down by higher courts is more than 5 years but this was least imposed at only 3.2%.14

Please note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore all offences committed on or after 1 September 2013 will not have this available as a sentencing option.15

Check out some of the criminal cases we’ve defended in court that involve the offence of Obtain Financial Advantage By Deception:

 



[1] Criminal Charge Book, 7.5.2.2.1 – Bench notes: Obtaining a Financial Advantage by Deception (21 October 2013) Judicial College of Victoria: .
[2] Ibid.
[3] R v Walsh [1990] 52 A Crim R 80; Matthews v Fountain [1982] VR 1045.
[4] Richardson v Skells [1976] Crim LR 448.
[5] 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.
[6] R v Salvo [1980] VR 401; Pollard v Cth DPP (1992) 28 NSWLR 659.
[7] [1980] VR 401, 432 (per Fullagar J).
[8] 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: .
[9] Australian Legal Information Institute (AustLII). Victorian Current Acts: Crimes Act 1958 Section 82: Obtaining Financial Advantage By Deception .
[10] Sentencing Advisory Council. Abolished Sentencing Orders. .
[11] Ibid.
[12] Sentencing Advisory Council. “SAC Statistics – Crimes Act 1958 (Vic): s 82(1) – obtain financial advantage by deception.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_82_1.html (accessed October 31, 2019).
[13] Sentencing Advisory Council. “Abolished Sentencing Orders.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders (accessed October 31, 2019).
[14] Sentencing Advisory Council. “SACStat Higher Courts – Crimes Act 1958 (Vic): s 82(1) – obtaining a financial advantage by deception.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_6231_82_1.html (accessed October 31, 2019).
[15] Sentencing Advisory Council. “Abolished Sentencing Orders.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders (accessed October 31, 2019).