Obtaining Property by Deception (Commonwealth)

by Doogue O'Brien George Criminal Defence Lawyers


How Serious is “Obtaining Property by Deception (Commonwealth)” in Melbourne?

There is a maximum penalty of 10 years imprisonment for a defendant convicted of “Obtaining Property by Deception (Commonwealth)”. This is a very serious offence especially if a case involves an amount that exceeds $100,000. For cases like this, jurisdiction is given to the County Court. Where the amount involved is $100,000 or less, a case will be heard summarily in the Magistrates’ Court.

 

The legislation on “Obtaining Property by Deception (Commonwealth)”

Section 134.1 of the Criminal Code Act 1995 is the relevant legislative provision for “Obtaining Property by Deception (Commonwealth)” and is as follows:

                       

Obtaining Property by Deception

 

(1)  A person is guilty of an offence if:

 

(a)  the person, by a deception, dishonestly obtains property belonging to another with the intention of permanently depriving the other of the property; and

(b)  the property belongs to a Commonwealth entity.

 

Penalty:  Imprisonment for 10 years.

 

(2)  Absolute liability applies to the paragraph (1)(b) element of the offence.

 

Obtaining Property

 

(3)  For the purposes of this section (and for the purposes of the application of section 132.1 to this section), a person (the first person ) is taken to have obtained property if, and only if:

 

(a)  the first person obtains ownership, possession or control of it for himself or herself or for another person; or

(b)  the first person enables ownership, possession or control of it to be retained by himself or herself; or

(c)  the first person induces a third person to pass ownership, possession or control of it to another person; or

(d)  the first person induces a third person to enable another person to retain ownership, possession or control of it; or

(e)  subsection (9) or (10) applies.

 

(4)  The definition of obtaining in section 130.1 does not apply for the purposes of this section (or for the purposes of the application of section 132.1 to this section).

 

(5)  For the purposes of this section, a person's obtaining of property belonging to another may be dishonest even if the person or another person is willing to pay for the property.

 

Intention of Permanently Depriving a Person of Property

 

(6)  For the purposes of this section, if:

 

(a)  a person obtains property belonging to another without meaning the other permanently to lose the thing itself; and

(b)  the person's intention is to treat the thing as the person's own to dispose of regardless of the other's rights;

 

the person has the intention of permanently depriving the other of it.

 

(7)  For the purposes of subsection (6), a borrowing or lending of a thing amounts to treating the thing as the borrower's or lender's own to dispose of regardless of another's rights if, and only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

 

(8)  For the purposes of subsection (6), if:

 

(a)  a person has possession or control (lawfully or not) of property belonging to another; and

(b)  the person parts with the property under a condition as to its return that the person may not be able to perform; and

(c)  the parting is done for purposes of the person's own and without the other's authority;

 

the parting is taken to amount to treating the property as the person's own to dispose of regardless of the other's rights.

 

Money Transfers

 

(9)  For the purposes of this section (and for the purposes of the application of section 132.1 to this section), if a person (the first person ) causes an amount to be transferred from an account held by another person (the second person ) to an account held by the first person:

 

(a)  the amount is taken to have been property that belonged to the second person; and

(b)  the first person is taken to have obtained the property for himself or herself with the intention of permanently depriving the second person of the property.

 

(10)  For the purposes of this section (and for the purposes of the application of section 132.1 to this section), if a person (the first person ) causes an amount to be transferred from an account held by another person (the second person ) to an account held by a third person:

 

(a)  the amount is taken to have been property that belonged to the second person; and

(b)  the first person is taken to have obtained the property for the third person with the intention of permanently depriving the second person of the property.

 

(11)  For the purposes of this section (and for the purposes of the application of section 132.1 to this section), if:

 

(a)  a credit is made to an account (the credited account ); and

 

(b)  a debit is made to another account (the debited account ); and

 

(c)  either:

 

(i)  the credit results from the debit; or

(ii)  the debit results from the credit;

 

the amount of the credit is taken to be transferred from the debited account to the credited account.

 

(12)  For the purposes of this section (and for the purposes of the application of section 132.1 to this section), a person is taken to cause an amount to be transferred from an account if the person induces another person to transfer the amount from the account (whether or not the other person is the holder of the account).

 

General Deficiency

 

(13)  A person may be convicted of an offence against this section involving all or any part of a general deficiency in money even though the deficiency is made up of any number of particular sums of money that were obtained over a period of time.

 

(14)  A person may be convicted of an offence against this section involving all or any part of a general deficiency in property other than money even though the deficiency is made up of any number of particular items of property that were obtained over a period of time.

 

Alternative Verdicts

 

(15)  If, in a prosecution for an offence of theft, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against this section, the trier of fact may find the defendant not guilty of the offence of theft but guilty of the offence against this section, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

 

(16)  If, in a prosecution for an offence against this section, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence of theft, the trier of fact may find the defendant not guilty of the offence against this section but guilty of the offence of theft, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

 

Pleading guilty or not guilty to “Obtaining Property by Deception (Commonwealth)” in a Melbourne Court

Deciding whether to plead guilty or not guilty to “Obtaining Property by Deception (Commonwealth)” has important implications for you and should be made after proper discussions with a criminal defence solicitor. If you are found guilty, there can be severe consequences.

 

Elements of the charge of “Obtaining Property by Deception (Commonwealth)” in a Melbourne Court

The prosecution must show that the defendant engaged in an act of deception and that this was done dishonestly. As a result of this deception, the defendant or another person should have obtained ownership, possession, or control of a property. This property must have belonged to a third party and the defendant must have intended to permanently deprive the third party of the property.

 

Defending the charge of “Obtaining Property by Deception (Commonwealth)” in a Melbourne Court

Defences that are often run in relation to this charge are factual errors, consent, lack of intent, and identification dispute. Lawyers may also use honest and reasonable mistake of belief as well as impossibility depending on the circumstances.

 

For more information on “Obtaining Property by Deception (Commonwealth)”, you may visit the Doogue O’Brien George Melbourne Criminal Lawyers site (here).

 

Doogue O’Brien George Melbourne can provide you more details about this

Our Head Office is at 5/221 Queen Street, Melbourne

Phone (03) 9670 5111 (24 hrs if you are in a Police Station)

 

This article was written on Sep. 18, 2013 and relates to the law as it stands at this time.



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