What is Obtaining Property by Deception?
Obtaining property by deception is a charge that is committed when a person both, deceptively and dishonestly, obtains property belonging to another, with the intention of permanently depriving the person of that property.
It is a charge that is commonly laid by police in Victoria along with other charges relating to theft and it can carry very heavy penalties depending on the value of the property stolen.
You should consult a specialist criminal lawyer before proceeding further. After considering a number of questions, your lawyer will be able to help you determine whether you have any avenues of defence available to you.
The elements of the charge
The prosecution must prove:
The defendant engaged in a deception;
He or she did so dishonestly;
As a result of the deception the accused:
Obtained ownership, possession or control of property; or
Obtained for another, or enabled another to obtain or to retain, the ownership, possession or control of property;
The property in question belonged to a third party; and
The intention with which the property was so obtained or retained was to permanently deprive the third party of that property making out the charge which is effectively theft by deception.
The maximum penalty
Level 5 imprisonment being a maximum of 10 years. This is the maximum penalty but for matters dealt with in the Magistrates Court, it is not unusual to receive a fine or a community corrections order although there are plenty of example where defendants have also received immediate terms of imprisonment.
In the Supreme Court and County Court (higher courts), the most common sentence for a charge of obtaining property by deception in the five years to 30 June 2021 was imprisonment (see Sentencing Advisory Council data). Of these sentences, the shortest prison sentence was less than 1 month and the longest was 5.5 years. In the Magistrates Court, the average prison sentence in the three years to 30 June 2021 was 5 months (see Sentencing Advisory Council data).
See the following examples of sentencing outcomes for obtaining property by deception in the higher courts in Victoria:
Kelly v The Queen: Obtaining property by deception x 8 charges
- The offender was convicted of 8 charges of obtaining property by deception. In this case, the offender stole $1,498,281.88 from his employer by signing company cheques made out to himself and entering information of other clients on the cheque stubs.
- The offender made an early plea of guilty, had no prior convictions and was 48 years old at the time of sentence. At sentence, the offender was found to have been motivated by financial gain, had previous good character, made admissions and had good prospects of rehabilitation. The offender was considered at an increased custodial burden due to physical health issues (i.e. where imprisonment is considered more burdensome than for a person of average health).
- The offender was sentenced to 5.5 years imprisonment with a non-parole period of 3 years and 5 months.
De Venuto: Obtaining property or financial advantage by deception x 4, financial advantage x 3 & false accounting
- Over 6.5 years, the offender, a company chief financial controller, dishonestly transferred company funds into personal accounts, paid personal creditors and purchased vehicles without authorisation. In total, the company was defrauded of $837,466.82.
- The offender also fraudulently recorded payroll payments defrauding the company of $379,038.
- The offender was 47 years old, entered an early plea and had prior unrelated convictions. At sentencing, he was found to be at an increased custodial burden, financially motivated, involved in the community, had previous good character, assisted authorities and had good prospects of rehabilitation. The offender received a total sentence of 5 years imprisonment with a non-parole period of 3 years.
DPP v Taylor: Obtaining property by deception x 6 & obtaining a financial advantage by deception X 4 charges
- The offender owned as was the CEO of a financial planning service. Victims (V1-V6) trusted the offender to invest significant sums of money as they agreed.
- The offender did not invest the money and instead used the funds without authorisation for his benefit. The offender deceived the victims by providing fake statements and performance advice. Over 8 years, the offender misappropriated $2,186,000. During the offending against V1-V6, the offender acted as a financial planner for a bank, which ultimately accepted liability for claims made by the victims.
- The offender had no prior convictions, pleaded guilty, had a difficult childhood, had been a victim of sexual assault, had poor physical health and was previously of good character. The offender demonstrated remorse and had good prospects of rehabilitation. The offender received a total sentence of 5 years and 9 months imprisonment with a non-parole period of 3.5 years.
DPP v Eliezer: Obtaining property by deception x 6
- The offender, claiming to be a successful share market investor, deceived friends V1-V5 over 7.5 years. She fraudulently obtained $775,000 from V1 and V2, $243,375 from V3, and misused 39 cheques from V3 totalling $4,793,160. Additionally, the offender mishandled two more payments from V1 and deceived V4 and V5 into buying non-existent shares worth $575,000. She failed to repay most of the money. Her actions involved false return statements, fake dividends, and personal use of the funds instead of investment.
- The offender had no prior convictions but faced subsequent convictions for similar offences. She was 60 years old, motivated by financial gain, had mental health issues, previous good character and participated in rehabilitation programs. The offender received a total sentence of 5 years and 8 months imprisonment with a non-parole period of 3 years and 8 months.
Where will my case be heard?
Obtaining Property by Deception cases can be heard in the Magistrates’ Court or County of Victoria depending on the amount being alleged. The quantum of the property obtained under this offence will determine which Court your case will be heard in. Anything over $100,000 must be heard in the superior jurisdiction (being the County or Supreme Courts) and proceed in the committal stream.
What to do next?
See an experienced criminal lawyer urgently. The sooner preparation of your matter begins the better your chances of a positive outcome in Court.
- You might have a defence?
- If you are pleading guilty, there maybe things that can be done to minimise your sentence
If you have been charged with Obtaining Property by Deception make an appointment to see one of our experienced criminal lawyers today.
Section 81 Obtaining property by deception
(1) A person who by any deception dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).
(2) For purposes of this section a person is to be treated as obtaining property if he obtains ownership, possession or control of it, and obtain includes obtaining for another or enabling another to obtain or to retain.
(3) Subsections (12) and (13) of section 73 shall apply for purposes of this section, with the necessary adaptation of the reference to appropriating, as it applies for purposes of section 72.
(4) For the purposes of this section, “deception”—
(a) means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person; and
(b) includes an act or thing done or omitted to be done with the intention of causing—
(i) a computer system; or
(ii) a machine that is designed to operate by means of payment or identification—
to make a response that the person doing or omitting to do the act or thing is not authorised to cause the computer system or machine to make.