Some of the Different Kinds of White-Collar Stealing Offences in NSW

 

A 53-year old woman, Catherine Koster was charged with obtaining financial advantage or cause disadvantage to her employer at the time, a charity organisation called Asbestos Diseases Foundation of Australia.

The charity organisation raises money for worthy causes including the funding for PhD students to conduct medical research, and to support people suffering asbestos diseases.

She pleaded guilty last month at the Parramatta Local Court for stealing $49,500 from the charity organisation while she worked there as a manager from April 2017 to February this year- a role that gave her the responsibilities of paying the organisations bills and other paperwork.

The charity organisation she stole from wasn’t a big organisation.

Her case was adjourned for sentencing in December this year

The $49,500 represented a years-worth of raising funds by the charity organisation.

It was meant to be paid to the Australian Turf Club for hiring the venue where the charity conducts its annual fundraising on race day at Rosehill to raise funds for research and to support people living with asbestos diseases.

So, when Ms. Koster was requested to pay the invoice for the venue hire in late last year, it is reported that she prepared a cheque, filled it in with her own name and deposited it at the ANZ Bank in Parramatta Westfields.

The deception was only discovered after the Turf club who issued the invoice of $49,500 for the venue hire had enquired about why it wasn’t paid by the charity organisation. This instigated an internal investigation where the charity obtained a copy of the cheque which revealed that it was ‘made payable to C. Koster”.

The Charity’s president, Barry Robson said, “it’s ripped us apart, not only financially but emotionally. The majority of our members are widows. It’s like she’s reached into everyone’s wallets and taken the money.”

It is reported that while she has expressed her intention of returning the stolen money, the charity have not received a cent to date.

So far, reportedly the woman has not provided much of an explanation as to the reason she did this, except for saying that while she suffers from post-traumatic stress disorder after a car crash, the stealing was a “matter of life and death”.

What is Obtaining Financial Advantage or Property by Deception?

‘Obtaining financial advantage or property by deception’ offences occur where each of the following elements of the crime are proven by police:

  • A person either caused a financial disadvantage to another person or received a financial advantage; and
  • This was a consequence of ‘deception’; and
  • That ‘deception’ was dishonest.

‘Deception’ includes doing something that causes the advantage or disadvantage without authorisation to do it. Dishonesty is where the person who did the deception was aware that he/she wasn’t authorised to do what was done (and had not honest claim of right to do it).

Anyone guilty of obtaining a financial advantage or property by deception or causing a financial disadvantage can expect to face a maximum penalty of up to a term of imprisonment of 10-years under section 192E of the Crimes Act 1900 (NSW).

What is Larceny?

To understand the charge of ‘larceny by servant or clerk’ an understanding of the offence of larceny is required.

Stealing is ‘larceny’ under the law.

Larceny charges carry heavy penalties which depend on the value of the property stolen.

Larceny (stealing) occurs where:

  1. Someone takes and carries a property (money, goods etc) away; and
  2. The property was owned or possessed by someone else; and
  3. At the time of taking and carrying the property away, there was an intention to permanently deprive the owner of it; and
  4. There was an absence of any consent by the owner of the property to take and carry it away.

Anyone guilty of a charge of larceny under section 117 of the Crimes Act 1900 (NSW) can expect to face the following maximum penalties:

  • If dealt with in the District Court, you can face up to a term of imprisonment of 5-years.
  • If the value of the stolen property is over $5,000- the maximum penalty in the Local Court is 2-years imprisonment.
  • If the value of the stolen property is under $5,000 but over $2,000- the maximum penalty in the Local Court is 1-year imprisonment and/or $5,500 fine.
  • If the value of the stolen property is under $2,000- the maximum penalty in the Local Court is 1-year imprisonment and/or $2,200 fine.

What Does ‘Possession’ Mean?

The case of He Kaw Teh outlines the meaning of ‘possession’, which “is a deceptively simple concept. It denotes a physical control or custody of a thing plus knowledge that you have it in your custody or control. You may possess a thing without knowing or comprehending its nature: but you do not possess it unless you know you have it.”

What is Larceny by Servant or Clerk – section 156 of the Crimes Act 1900 (NSW)?

This is where a person, while he/she is employed, steals property (including money) from his/her employer in circumstances the stolen property was owned or possessed by the employer.

To be guilty of this charge, the prosecution is required to prove, beyond reasonable doubt, as to each of the following elements that make up this offence:

  1. You committed a larceny (you stole property i.e. money or goods) from the employer in circumstances the employer had possession or ownership of the property; and
  2. At that time, you were employed by the employer you stole from;

Anyone guilty of larceny by servant or clerk under section 156 of the Crimes Act 1900 (NSW) can expect to face the following maximum penalties:

  • If dealt with in the District Court- a term of imprisonment of up to 10-years imprisonment.
  • If the value of the stolen property is over $5,000- the maximum penalty in the Local Court is 2-years imprisonment and/or $11,000 fine.
  • If the value of the stolen property is between $5,000 and $2,000- the maximum penalty in the Local Court is 2-years imprisonment and/or $5,500 fine.
  • If the value of the stolen property is under $2,000- the maximum penalty in the Local Court is 2-years imprisonment and/or $2,000 fine.

A charge of this kind can only be dealt with in the District Court if the value of the property alleged to have been stolen is worth over $2,000.

For more details on this, see our previous blog on the law and penalties for larceny by clerk or servant offences in NSW.

There are some defences that can apply to a charge of larceny or larceny by servant or clerk, in which case, if successful it will result in the dismissal of the charges following a verdict of not guilty. This will occur if any of the following defences apply:

  • You acted under necessity or duress; or
  • You were given consent by the owner of the property; or
  • You took and carried the property away without an intention to permanently deprive the owner of it. This be a very difficult defence to succeed in if the evidence leads to an accused person having taken and carried the property away.
  • You took and carried the property away whilst holding an honest claim of legal entitlement to the property taken, justifying your actions.

You will be guilty of larceny even where you take and carry a property belonging to another away with the intention of using it for your own benefit- whether or not you intended to later return it to the owner.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Australia's Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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