Introduction

Embezzlement is a big deal under New South Wales criminal law. It’s a type of financial fraud and white-collar crime where someone sneakily takes property. Imagine a trusted clerk or servant who gets a bit too cheeky and takes what’s not theirs. They’ve been given trust by their boss but decide to play sneaky and break that trust. It’s like having someone hold your ice cream and then, whoops, it’s gone! People in positions of trust need to be careful because when they cross the line, they’re in hot water. So, what really happens when the trustworthy become over-trusting? Let’s dive in and uncover more about why being trustworthy is so important, and what happens when it’s taken lightly.

Under the Crimes Act 1900 (NSW), embezzlement is distinct from larceny, particularly concerning possession of the property. This guide aims to provide a clear understanding of embezzlement as a criminal offence in NSW. It will cover key aspects such as the definition of embezzlement, potential penalties including imprisonment, and the court process involved, offering guidance for those facing embezzlement charges and highlighting the importance of seeking legal advice from experienced criminal defence lawyers.

What is Embezzlement Under NSW Criminal Law?

Defining Embezzlement as a Criminal Offence

Embezzlement is considered a serious criminal offence in NSW. It is defined as a type of financial fraud where someone unlawfully takes or misuses assets or funds they have been entrusted with. This offence is distinct from other forms of theft because the person committing embezzlement initially has legal access to the property due to a position of trust.

In NSW, the Crimes Act 1900 (NSW) outlines embezzlement as a criminal offence. Section 157 of the Crimes Act 1900 (NSW) specifies that any clerk or servant who fraudulently embezzles property entrusted to them on behalf of their master or employer is deemed to have stolen it. This definition highlights the core elements of embezzlement include a breach of trust and the dishonest appropriation of property by a clerk or servant.

Key Elements of an Embezzlement Offence

To establish an embezzlement offence in NSW, the prosecution must prove that the accused met specific criteria beyond a reasonable doubt. These key elements are crucial for securing a conviction for embezzlement under NSW criminal law.

The essential elements include:

• Position of Trust: The accused must have been in a position of trust, such as a clerk or servant, employed by the owner of the assets at the time the offence occurred. This signifies a relationship where the individual is entrusted with access to property or funds due to their role.
• Property Entrusted: The property in question must have been delivered to, received, or taken into possession by the clerk or servant for, or on behalf of, their master or employer. This means the property came into the possession of the property through their employment duties.
• Fraudulent Embezzlement: The accused must have fraudulently embezzled the property, either in whole or in part. This involves a dishonest misappropriation of the entrusted assets for their own benefit, indicating dishonesty and deceit.
• Deemed Stolen: The act of fraudulently embezzling property in these circumstances shall be deemed to constitute theft, even if the property was not received directly into the possession of the master or employer other than through the clerk or servant. This clarifies that embezzlement is a type of stealing recognised under the law.

These elements underscore that embezzlement is more than simple theft; it is a violation of trust where an employee or servant abuses their authorised access to an employer’s assets for personal gain. The prosecution needs to prove each of these elements to secure a conviction for embezzlement in NSW.

Penalties for Embezzlement in NSW

Maximum Penalties in Local Court

For embezzlement offences dealt with in the Local Court in New South Wales (NSW), the penalties depend on the value of the assets or money embezzled. If the value of the property embezzled exceeds $5,000, the maximum penalty is two years imprisonment and/or a fine of 100 penalty units, which equates to $11,000. 

If the value of the property does not exceed $5,000, the maximum penalty is also two years imprisonment, but the fine is lower, at 50 penalty units or $5,500.

For the lowest value category, where the value does not exceed 2,000, the penalties remain at a maximum of two years imprisonment, and/or 20 penalty units, which is a $2,200 fine. 

It is important to note that while imprisonment is listed as a maximum penalty in the Local Court, it is generally reserved for more serious instances of embezzlement.

Penalties in District or Supreme Court

More serious embezzlement offences, or those involving larger sums of money, are dealt with in the District or Supreme Courts. In these higher courts, the maximum penalty for embezzlement is significantly greater. Under section 157 of the Crimes Act 1900 (NSW), individuals found guilty of embezzlement in the District or Supreme Court may face imprisonment for up to ten years.

This reflects the seriousness with which the courts treat embezzlement, especially when it involves a significant breach of trust or substantial financial loss. The potential for a lengthy prison sentence highlights the importance of seeking experienced criminal defence legal advice if facing embezzlement charges in these courts.

Alternative Penalties to Imprisonment

While imprisonment is a possible penalty for embezzlement in NSW, the courts can also impose several alternative penalties. These alternatives to imprisonment include:

• Home detention: Allowing the offender to serve their sentence at home under specific conditions.
• Intensive Correction Orders (ICOs): These involve intensive supervision and case management, and are served in the community.
• Conditional Release Orders (CROs): These orders require good behaviour and may include specific conditions.
• Community Correction Orders (CCOs): Mandating community service work and other rehabilitative activities.
• Good behaviour bonds: Requiring the offender to be of good behaviour for a specified period.
• Fines: Monetary penalties, which can be imposed alone or in addition to other penalties.

The court’s decision to impose an alternative penalty depends on various factors, including the offender’s personal circumstances, criminal history, and the details of the embezzlement offence. In cases where these factors are less severe, a court might even consider a section 10 dismissal, which means no criminal record is recorded, and no penalties are imposed, although conditions may be attached.

Defending Embezzlement Charges in NSW

Common Defences: Lack of Intent and Mistake

One potential defence against embezzlement charges in NSW is demonstrating a lack of fraudulent intent. This defence argues that the accused did not intentionally take or use the property or funds dishonestly. For instance, the accused might claim they believed they had permission to use the funds or property, or they were unaware that their actions were unlawful.

Another defence is based on genuine mistake. In this scenario, the accused may argue that they made an error and did not deliberately embezzle the funds. This could involve situations where the accused misunderstood financial procedures or made an unintentional accounting error. To successfully argue mistake, it must be shown that there was no intention to act fraudulently.

Defences of Duress and Necessity

In certain situations, the defences of duress and necessity may be applicable to embezzlement charges. Duress can be argued if the defendant was coerced into committing embezzlement due to harmful threats. To use this defence, it must be proven that the defendant was under credible threats of death or grievous bodily harm, leading them to believe they would be harmed if they did not commit the offence.

Necessity arises when unlawful actions are justifiable due to imminent danger from human or natural forces. This defence requires proof that the actions were taken to avoid an “irreparable evil”, the individual genuinely believed they were in “imminent peril”, and they had no other viable alternatives to avert the threat. For example, necessity might be argued in extreme cases where an individual embezzles funds to prevent a greater harm, believing it was the only way to avoid a catastrophic outcome.

The Court Process for Embezzlement Offences

Local Court vs District or Supreme Court

Embezzlement offences in New South Wales (NSW) are generally first heard in the Local Court. The Local Court handles less serious criminal matters, including some embezzlement cases. However, the court where your embezzlement case will be heard can vary depending on the seriousness and value of the alleged offence.

More serious embezzlement offences, particularly those involving larger sums of money or a significant breach of trust, may be moved to the District or Supreme Court. This can occur if either the prosecution or the defendant elects to have the matter dealt with in a higher court. Cases involving sums under $5,000 are typically dealt with in the Local Court. However, for offences involving sums exceeding this amount, or for more complex cases, the matter may be dealt with in the District or Supreme Court.

Pleading Guilty or Not Guilty

When facing embezzlement charges, the accused individual has the option to plead either guilty or not guilty. Choosing to plead guilty means that you admit to committing the embezzlement offence. In this instance, the case will proceed directly to sentencing, where the court will determine the appropriate penalty. Pleading guilty can sometimes be seen by the court as a demonstration of remorse and accountability, which may result in a more lenient sentence.

Conversely, choosing to plead not guilty means that you are contesting the charges, and the prosecution will then be required to prove beyond a reasonable doubt that you committed the embezzlement offence. If the prosecution successfully proves that the accused is guilty of an embezzlement offence, the court will then proceed to sentencing. If the prosecution fails to meet this burden of proof, the defendant will be found not guilty, and the charges will be dismissed.

Conclusion

Embezzlement is a serious criminal offence in NSW under the Crimes Act 1900 (NSW), classified as a form of financial fraud and white-collar crime. It involves the fraudulent misappropriation of property by a clerk or servant in a position of trust, and is distinct from larceny due to the initial lawful possession of the property. The penalties for embezzlement can be severe, including imprisonment for up to ten years imprisonment in the District Court or Supreme Court, or two years imprisonment in the Local Court, depending on the value of the property embezzled.

If you are facing embezzlement charges in Sydney or New South Wales, it is crucial to seek legal advice from experienced criminal defence criminal lawyers. Contact Daoud Legal today to seek guidance and support from our defence lawyer team, who have years of combined experience defending clients against criminal charges and can provide tailored to your specific circumstances to achieve the best outcome possible in your criminal law matter.

Frequently Asked Questions