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EMBEZZLEMENT

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Embezzlement is a category of fraud and a white collar crime. It is the theft or misappropriation of funds by someone in a position of trust, for example a trustee, or an employee to gain a financial advantage. If you have been accused of embezzlement, contact our criminal law team for a free initial consultation. 

In New South Wales, Division 6 of the Crimes Act 1900 (NSW) encompasses both embezzlement and larceny by a person in a position of trust or employment. In Australia, all elements of the offence to be proven beyond a reasonable doubt. 

Prosecution for embezzlement and other fraud offences may result in a criminal conviction and a criminal record. This can have a serious long-term impact on other areas of your life for example, employment, family law proceedings, applying for and maintaining professional licences, overseas travel, applying for loans and insurance, etc.

Like other fraud cases, it is up to the discretion of the prosecution to determine if your matter will be prosecuted in the Local Court or the District Court. This will be determined based on the seriousness of your offending and any other criminal offence you have been accused of. If your matter is prosecuted in the Local Court, the maximum penalty available is two years imprisonment. It is highly recommended that you have legal representation, regardless of which court your matter is heard in.

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    Embezzlement offences and definitions

    Clerk or servant:

    If you are employed for any purpose, as, or in the capacity of, a clerk, or servant, or as a collector of moneys, although only temporarily only, or employed also by other persons, or employed to pay as well as receive money, or although the person had no authority from your employer to receive money, or other property, in your account, you are deemed a clerk or servant.

    Property:

    Includes every description of real and personal property – money; valuable securities; debts and legacies; all deed instruments, relating to or evidencing the title or right to any property, or giving a right to recover or receive any money or goods. It not only includes property originally in the possession or under the control of any persons, but also any property into which the same may have been converted or exchanged, and everything acquired by any such conversion or exchange, whether immediately or otherwise.

    Larceny by clerk or servant:

    If you are a clerk or servant, and you steal any property belonging to, or in the possession, or power of your master, employer, or any property into or for which it has been converted, or exchanged, you are liable.

    The maximum penalty for this offence is ten years imprisonment if your matter is prosecuted in the District Court.

    If your matter is prosecuted in the Local Court, the maximum penalty is:

    • Two years imprisonment or a fine of $11,000 where the value exceeds $5,000.00
    • Two years imprisonment or a fine of $5,500.00 where the value does not exceed $5,000.00
    • Two years imprisonment or a fine of $2,200.00 where the value does not exceed $2,000.00

    Embezzlement by clerk or servant:

    If you are a clerk or servant, and fraudulently embezzle, either in whole or in part, any property delivered to, or received, or taken into possession by yourself, for, or in the name, or on the account of your master, or employer, you will be deemed to have stolen the same, although such property was not received into the possession of your master, or employer, otherwise than by the actual possession of such clerk, or servant, and you will be liable.

    The maximum penalty for this offence is ten years imprisonment if your matter is prosecuted in the District Court.

    If your matter is prosecuted in the Local Court, the maximum penalty is:

    • Two years imprisonment or a fine of $11,000 where the value exceeds $5,000.00
    • Two years imprisonment or a fine of $5,500.00 where the value does not exceed $5,000.00
    • Two years imprisonment or a fine of $2,200.00 where the value does not exceed $2,000.00

    Larceny by persons in public office, etc

    If you are employed in public service, and you steal any property, or any part thereof, entrusted to you, or taken into your possession, or being in your custody, or under your control, by virtue or colour of your employment, you will be liable.

    The maximum penalty for this offence is ten years imprisonment if your matter is prosecuted in the District Court.

    If your matter is prosecuted in the Local Court, the maximum penalty is:

    • Two years imprisonment or a fine of $11,000 where the value exceeds $5,000.00
    • Two years imprisonment or a fine of $5,500.00 where the value does not exceed $5,000.00
    • Two years imprisonment or a fine of $2,200.00 where the value does not exceed $2,000.00

    Embezzlement, etc by persons in public office

    If you are employed by the Pubic Service, and you fraudulently embezzle any property, or any part thereof, so entrusted to you, or taken into your possession, or being in your custody, or under your control, or you fraudulently secrete, remove, or in any manner fraudulently apply, or dispose of, the same, or any part thereof, you will be deemed to have stolen the same and you will be liable.

    The maximum penalty for this offence is ten years imprisonment if your matter is prosecuted in the District Court. 

    If your matter is prosecuted in the Local Court, the maximum penalty is:

    • Two years imprisonment or a fine of $11,000 where the value exceeds $5,000.00
    • Two years imprisonment or a fine of $5,500.00 where the value does not exceed $5,000.00
    • Two years imprisonment or a fine of $2,200.00 where the value does not exceed $2,000.00

    Evidence

    The prosecution only needs to prove a general discrepancy on the examination of the account books, or entries kept, or made by you.

    If on the evidence it is clear that you are guilty of larceny, you may be acquitted of the charge of embezzlement and convicted of larceny.

    Summary Court Process (Local Court)

    Embezzlement matters prosecuted summarily will be heard in the Local Court. 

    The Local Court process is as follows:

    1. Contact Jameson Law for a free initial consultation from our criminal defence lawyers 
    2. Mention hearing: This is the first court date for your matter. It essentially brings it to the attention of the court. You can plead guilty at this stage after receiving legal advice and the matter will be finalised. If you plead not guilty, the court will adjourn your matter and set another court date. The court will set a date for each party to produce their evidence (brief mention)
    3. You should use this time to gather any supporting evidence such as character references.
    4. Brief mention: Each party must produce their evidence to the court and each other. Another court date will be set for hearing
    5. Defended hearing: both parties will present their argument to the court. The court will make their decision and issue a sentence where appropriate.

    Local Court sentencing options

    There are many sentencing options available to the Local Court. 

    Pleading guilty at the earliest opportunity may entitle you to a 25% reduction in your sentence. However, you should NOT plead guilty until you have received legal advice, to ensure the best possible outcome for your matter. 

    Section 10

    A section 10 is the best possible outcome in the event the court finds you guilty of an embezzlement offence. There are three orders available to the court under section 10 of the Crimes (Sentencing and Procedure) Act where the court believes it is inappropriate to further punish an offender. 

    • Section 10 (1) (a)- dismissal with no conviction recorded (non-conviction)
    • Section 10 (1) (b)- dismissal with no conviction on conditions set by the court. For example, not to commit an offence for a period of two years – a form of¬†good behaviour¬†bond
    • Section 10 (1) (c)- dismissal with no conviction on the condition that the offender enters into an intervention program. For example drug and alcohol counselling.¬†

    A section 10 is an acknowledgement of the court that you have committed an offence, however, the court is satisfied that it is out of character and you are unlikely to continue offending. It’s the court’s way of giving you a second chance.

    Before granting a section 10, the court will consider:

    • Your criminal history.¬†
    • Your character, antecedents, age, health and mental condition, etc
    • The trivial nature of the offence
    • Extenuating circumstances that lead to the offence being committed¬†
    • Any other matter the court considers relevant

    Intensive Correction Order

    Intensive Corrections Orders are an option available to the court where a sentence of imprisonment is imposed on the condition that a defendant is of good behaviour and agrees to supervision by a community corrections officer rather than go to prison. 

    Additional conditions that may be imposed by the court include:

    • home detention
    • electronic monitoring
    • curfew
    • community service (up to 750 hours)
    • participation in rehabilitation or treatment programs, for example, drug treatment/counselling
    • no drugs or alcohol
    • refrain from certain relationships/associations, for example, drug dealer, etc.
    • ban from certain locations

    Community Correction Order:

    Community Corrections Orders are similar to Intensive Corrections Orders. The main exception being that a defendant needs to make themselves available to attend court at any time the court requires.

    Conditional Release Order

    A Conditional Release Order is similar to an Intensive Corrections Order or Community Corrections Order. A Conditional Release Order can be issued with or without a conviction recorded.

    Section 32

    A section 32 is a diversionary option available under the Mental Health (Forensic Provisions) Act 1990 (NSW). If a defendant is, or at the time the offence occurred:

    • cognitively impaired
    • suffering from mental illness
    • suffering from a mental condition for which treatment is available in a¬†mental health¬†facility

    The options available to a magistrate under a section 32 include:

    • adjourning the matter
    • granting the defendant bail
    • any other order the magistrate deems appropriate
    • dismissing the charges and discharging the defendant into the care of a responsible person (e.g. a parent) on the condition they attend a specified place for assessment or treatment.

    Indictable Court Process (District or Supreme Court)

    1. Contact Jameson Law for a free initial consultation
    2. Bail: A bail application¬†may need to be made if bail isn’t granted earlier
    3. Committal hearing: This a hearing to determine if there is enough evidence to proceed to trial. If there isn’t enough evidence, that is the end of the matter. If there is enough evidence, the matte is adjourned and a new court date is set.
    4. Case conferences: may take place between the committal and the trial. 
    5. Trial: Both parties will present their argument to the court. This can take a number of weeks or months depending on the seriousness of the matter and the number of charges. The jury will make a determination of guilt. If they find you guilty, the court will adjourn and a new date set for sentencing. This gives the judge an opportunity to review the evidence and work out the most appropriate sentence. The court may ask for additional information to inform sentencing such as pre-sentencing reports from Corrective Services, etc.
    6. Sentencing: The judge will hand down his or her sentence and their reasons for the decision.

    Frequently Asked Questions.

    Some common examples of embezzlement include overbilling customers and then keeping the extra money; using the company credit card for personal use; padding the accounts, for example being creative to justify lavish work lunches; etc.

    Embezzlement is a type of fraud. Embezzlement is the direct theft from a business or public office by a person in a position of trust. Fraud is a broad term that refers to dishonestly obtaining a financial gain through practices such as credit card skimming.

    Like other fraud charges, there are a number of defences to the charge of embezzlement. These include, but are not limited to:

    Duress – You were forced to commit the offence due to threats, for example, of physical harm

    Necessity – You were require to commit the offence to avoid a particular consequence that would bring significant harm.

     For specific advice about your legal defence, contact our criminal law experts for a free initial consultation.

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    Legislation: CRIMES ACT 1900

    (1) A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable–
    (a) to imprisonment for 5 years, or
    (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 10 years.
    (1A) A person who, in the company of another person or persons, intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable–
    (a) to imprisonment for 6 years, or
    (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 11 years.
    (2) A person who, during a public disorder, intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable–
    (a) to imprisonment for 7 years, or
    (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 12 years.

    (1) A person who destroys or damages property, intending by the destruction or damage to cause bodily injury to another, is liable–
    (a) to imprisonment for 7 years, or
    (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 14 years.
    (2) A person who, during a public disorder, destroys or damages property, intending by the destruction or damage to cause bodily injury to another, is liable–
    (a) to imprisonment for 9 years, or
    (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 16 years.

    (1) A person who dishonestly, with a view to making a gain for that person or another, destroys or damages property is liable–
    (a) to imprisonment for 7 years, or
    (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 14 years.
    (2) A person who, during a public disorder, dishonestly, with a view to making a gain for that person or another, destroys or damages property is liable–
    (a) to imprisonment for 9 years, or
    (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 16 years.

    Disclaimer

    The above is general legal information and should not be considered legal advice. You should speak with one of our criminal lawyers for legal advice tailored to your specific legal matter. The penalties listed are maximum penalties. The courts deal with matters on a case by case basis. It should also be noted that there may be court delays due to COVID-19.

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