In this article we discuss the elements, defences & penalties of the offence of Obtain Financial Advantage. The offence of Obtain Financial Advantage is an indictable offence and is prosecuted under Section 82 of the Crimes Act 1958 (Vic).
Table of Contents
What The Prosecution Must Prove
the accused obtained a financial advantage
the accused used deceit to obtain the financial advantage
the accused obtained the financial advantage dishonestly
Financial Advantage
A “financial advantage” includes (but is not limited to) the following circumstances:
When a debt or charge for which the accused is or may become liable (including one which is not legally enforceable) is reduced or in whole or part evaded or deferred.
When the accused can borrow by way of overdraft or to take out any policy of insurance or annuity contract, or obtains an improvement of the terms on which she/he is allowed to do so; and
When the accused is given the opportunity to earn remuneration or greater remuneration in an office or employment, or to win money by betting (R v Vasic (2005) 11 VR 380).
Where the accused through deception evades a debt owed by them.
Obtaining
The accused “obtains" a financial advantage if s/he obtains ownership, possession, or control of it (Crimes Act 1958 s81(2)).
Deceit
The accused must have obtained the financial advantage by deception (Crimes Act 1958 s81(1); R v Salvo [1980] VR 401).
For this element to be met, the prosecution must prove that:
The accused made a representation by words or conduct.
The representation was about existing or past facts or law.
The representation was false.
The accused knew the representation was false or was reckless as to whether it was true or false.
The accused intended to obtain the property by making the representation.
The false representation was believed by the victim (who was thereby deceived); and
The accused obtained the financial advantage because of the deception.
Financial Advantage Was Obtained Because of The Deception
10. The financial advantage must have been obtained because of the deception. That is, there must have been a causal connection between the deception used and the obtaining of the financial advantage (R v Jenkins (2002) 6 VR 81; R v Clarkson [1987] VR 962; R v King [1987] QB 547).
11. For this requirement to be met, the prosecution must prove that the deception operated on the mind of the person deceived (R v Jenkins (2002) 6 VR 81).
12. It is a question of fact for the jury to decide whether the deception was an “operative cause” of the obtaining (R v King [1987] QB 547).
The Penalty for Obtain Financial Advantage by Deception in Victoria
Under section 82 of the Crimes Act 1958 (Vic) a person found guilty of Obtain financial advantage by deception is liable to a penalty of 10 years imprisonment (maximum).
Defences to Obtain Financial Advantage by Deception
The elements to the offence are set out in the summary above. A factual dispute may arise as to any of these elements.
A factual dispute is simply a contention that the prosecution cannot prove one or several of the elements of the offence as a fact or facts said to support these elements are disputed.
That is, an accused may argue that there was no relevant financial advantage received by them; alternatively that in receiving the financial advantage that they did not act in a deceitful way; or the financial advantage was never obtained by them.
Sentencing Outcomes
This offence can be heard and finalised in the Magistrates’ Court if the property value is less than $100,000. As a guide, the Sentencing Advisory Council has published the top 4 sentencing outcomes for this offence in the Magistrates’ Court for the period 2016 – 2019:
Imprisonment – 42%
Community Correction Order – 29.3%
Fine – 14.1%
Adjourned undertaking/discharge/dismissal
Conclusion
The offence of obtain financial advantage by deception is a very prevalent offence, and for this reason the courts will frequently impose stern sentences as a deterrence.
It is very important to get prompt legal advice about the prospects of defending a charge of obtain financial advantage by deception or otherwise mitigating the penalty. Contact us to arrange a free case assessment.
Comentários