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Obtaining Property By Deception – Commonwealth

This is a serious Commonwealth offence whereby people who use dishonest means to acquire Commonwealth property can be charged and sentenced to a term of imprisonment. Property is defined as including real property, personal property, money, intangible property and electricity. The concept of dishonesty is measured using the standards of an ordinary person.

You can be charged with this offence even if you were not aware that the property belonged to the Commonwealth.
What is the legal definition of Obtaining Property By Deception – Commonwealth?
A person uses deception to dishonestly obtain property belonging to the Commonwealth the intention of permanently depriving the Commonwealth of the property. Absolute liability applies to this offence. This means that you can be charged without having knowledge that the property belonged to the commonwealth.

There are a number of factors that can affect this charge. The act qualifies and explains the different ways that a person can take ownership of property. This includes enabling or inducing ownership of a third party.

The act explains the ways by which a person can permanently deprive someone of property. Borrowing and lending are included in this. The act also describes the various ways a person can be in possession of property.

A person can be charged for this if they took ownership or enabled ownership for themselves or a third party through inducement.

Examples of Obtaining Property by Deception – Commonwealth
  • A person works for a government agency such as Australia Post and authorises payment of false invoices of which they receive a portion of the payment.
  • A person who works in setting up state funded schools and is discovered to be inflating student register numbers with non-existent classes to increase funding.
  • A person in the medical industry is takes advantage of benefits provided to them from the Health Insurance Commission by claiming services that were not performed.
The legislation for this offence can be found on section 134.1 of Criminal Code Act 1995.

Elements of the offence
In simple terms, you have taken property that belongs to the commonwealth. You have done this with an act of deception.

In basic terms, the deception must be against a Federal Government Body for you to be found guilty of this offence.

The definition of “permanent deprivation” is contained within section 134.1 which includes:

  1. if a person obtains property belonging to another without meaning the other permanently to lose the thing itself; and
  2. if the person’s intention is to treat the thing as the person’s own to dispose of regardless of the other’s rights;
So, it is acting in a way inconsistent with another person’s ownership that may establish the intention to permanently deprive.
Defences to these sorts of charges often involve factual disputes about what actually happened and also issues of intention. Honest and reasonable mistake of belief and the concept of beyond reasonable doubt may also be used.

Questions in cases like this
  • Did the property belong to the Commonwealth?
  • Was it dishonest?

The maximum penalty for Obtaining Property By Deception – Commonwealth (s134.1 of the Commonwealth Criminal Code 1995) is imprisonment for 10 years.

Sentencing in the higher courts
There had been 46 charges of Obtaining Property By Deception – Commonwealth that were heard in the higher courts of Victoria from 1 July 2011 to 30 June 2016. Most of these charges resulted in imprisonment (89.1%). The remaining charges resulted in suspended sentences: partially suspended sentence (8.7%) and wholly suspended sentence (2.2%).

Of those who were sentenced to prison, 48.8% were sentenced to a term between 1 and 2 years while 43.9% somewhere between 2 and 3 years. The remaining 2.4% were given the highest prison terms which are between 3 and 4 years.1

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.2

[1] SACStat Higher Courts – Criminal Code Act 1995 (Cth) : s 134.1(1) – obtaining property by deception – Commonwealth entity < https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_CRIMCODE_134_1_1.html >
[2] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >