44-year-old Ms. Van Wijngarden, a real estate agent and director of Unique Estates was charged with fifteen counts of fraud offences allegedly involving a total quantum of over $3.5 million. The charges were laid following an investigation by forensic accountants. (https://www.propertyobserver.com.au/forward-planning/investment-strategy/property-news-and-insights/91274-unique-estates-founder-nicolette-van-wijngaarden-faces-15-fraud-charges.html)
For over a nearly two-year period, from May 2016 to early February 2018, she is alleged to have misused $3.69 million of money that was placed into her businesses trust account by her clients.
Amongst the charges she is now facing include ten counts of dishonestly obtain financial advantage by deception, and an allegation of fraudulently converting money from a business for an individual’s personal use pursuant to section 211(2) of the Property, Stock and Business Agents Act 2002 (http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/psabaa2002385/s211.html).
While she resides in Melbourne, a court attendance notice was mailed to her address in Elwood.
Ms. Wijngarden has a reputation of being involved in selling high profile multi-million-dollar properties in Queensland, Victoria and NSW (https://www.smh.com.au/national/nsw/prestige-property-agent-charged-with-3-6-million-fraud-20181026-p50c98.html), “including Chapel House- the historic estate which once belonged to the artist John Olsen- and Cedar Springs, the home in the Byron Bay hinterland which was built by actor Paul Hogan.”
Although living in Melbourne, her portfolio also covers properties all around Australia, including Byron Bay, Port Stephens, Victorian locales of Daylesford, and at Elaora on the Gold Coast.
The estate agency was founded by her in Byron Bay in two thousand and nine with a focus on luxurious properties. The business then grew with offices in Double Bay, Gold Coast, Melbourne and Hong Kong.
Before being charged with the fraud offences, her real estate agency went into liquidation in May with an estimated debt of four million dollars to 26 employees and other creditors.
Amongst those that are owed money include the Office of State Revenue, The ATO, and BMW Australia Finance.
It’s reported that a liquidator’s report identifies “a number of deficiencies in the trust accounts” of her agency business. Amongst the anomalies detected, a PWC appointed liquidator also uncovered that the value of some assets was “significantly overstated”.
What is the Law and Penalties for Dishonestly Obtaining Financial Advantage by Deception Charges in NSW (https://www.criminaldefencelawyers.com.au/criminal-law/offences/fraud-charges/obtain-financial-advantage-or-property-by-deception/)?
A person guilty of dishonestly obtaining a financial advantage or causing a financial disadvantage by deception pursuant to section 192E of the Crimes Act 1900 (NSW) will face a penalty of up to 10 years imprisonment if the matter is dealt with in the District Court.
The maximum penalty for any one count of this offence if dealt with in the local court is up to 2 years imprisonment.
Interestingly, if the matter is dealt with in the local court, a local court Magistrate upon sentencing an offender is limited to imposing a compensation order of not more than $100,000. This is reflected in section 98(b) of the Victims Rights and Support Act 2013 (NSW) (http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/vrasa2013318/s98.html).
In practicality, a fraud charge involving more than $100,000 will more likely be elected on by the prosecution to be dealt with in the District Court which has the power to make a compensation order exceeding $100,000.
For a further outline and discussion on this issue, see our previous blog on compensation orders by courts (https://www.criminaldefencelawyers.com.au/blog/employee-fraud-and-compensation-orders-by-courts-do-the-ends-justify-the-means/).
A person can be guilty of dishonestly obtaining a financial advantage or causing a financial disadvantage by deception if the following elements of the crime are proven in court by the prosecution:
- The accused person received a financial advantage or caused a financial disadvantage to someone else; and
- This was caused by the accused’s ‘deception’ in the sense that the accused did something that he/she was not authorised to do; and
- The accused person’s deceptive conduct was such that it was ‘dishonest’ according to the standards of what ordinary people consider as dishonest, and the accused person knew it was dishonest according to those standards.
In the event that ‘deception’ is proven, ‘dishonesty’ is usually inherent in the ‘deception’ used.
What are the Defences to a Charge of Dishonestly Obtain a Financial Advantage or Cause a Financial Disadvantage in NSW?
Your charge will be dismissed if any one of the following defences apply:
- Your alleged deceptive conduct was not the ‘operative cause’ of the financial advantage (or the cause of a financial disadvantage).
- You didn’t turn your mind to the probable consequence of causing the financial advantage or disadvantage.
- Claim of right: You will be not guilty if you held an honest belief that you were entitled to the financial advantage if that belief was held on reasonable grounds in the circumstances.
- Mental illness defence, where your mental illness at the time caused you to be unaware as to the quality or nature of your action, or if you knew the nature and quality of your actions, you weren’t able to reason with any moderate degree of sense and composure that your actions were right or wrong.
- Duress or Necessity.
Have any questions from this blog? Our team are available 24/7 and attend all courts.
We have criminal lawyers in Blacktown (https://www.criminaldefencelawyers.com.au/about-us/offices/criminal-lawyers-blacktown/), Wollongong, Newcastle and Penrith.