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Case Study: Obtain Financial Advantage by Deception

Updated: May 8

Date and location of the offending


Various dates spanning a period of 2 years (July 2018 - August 2020).


Court


Moorabbin Magistrates' Court, December 2021


Facts


At the time of the offences, our client was employed as a real estate agent. The facts of the offending were that our client provided a false nomination on 9 traffic infringement notices spanning a period of 2 years.


Our client was charged with nine (9) offences of Obtain Financial Advantage by Deception contrary to section 82 of the Crimes Act 1958 (Vic)


The indictable offence of Obtain Financial Advantage by Deception has a maximum penalty of 10 years imprisonment.


The 'financial advantage' in question was the avoidance of the debt levied against our client through the infringement notice. Although not a financial benefit, he also benefited in avoiding the points that would otherwise be tallied against his driver's license.


Initial discussions with the Informant resulted in a recommendation for diversion, an application was made to the Court, but refused.


Further case conference discussions with the prosecution occurred and a request to proceed under Section 84BI of the Road Safety Act 1986 (Vic) (Providing a False Nomination), notwithstanding that the statutory period for the prosecution of these offences had passed we submitted the gravamen of the offending was captured by this summary offence, and our client had consented pursuant to section 7 of the Criminal Procedure Act 2009 (Vic).


The prosecution declined to substitute the summary offences for the indictable charges, and consequently, as a result of further negotiations, the prosecution agreed to rolled-up the 9 separate charges into a single representative offence of Obtain Financial Advantage by Deception.


The vice of the offending concerned our client nominating a friend for traffic infringement notices that he had received for minor speeding offences. The total value of the fines accumulated was less than $3,000.


How case resolved


Our client instructed our office that he would enter a plea to a single charge of Obtain Financial Advantage by Deception as per negotiations with Moorabbin prosecutions.


Detailed written submissions were provided to the Court, in addition to a chronology of relevant events, and several impressive character references.


The evidence of good character was compelling in this case as we were able to demonstrate to the Court that our client had given much to support his local community and his family overseas.


It was also noted by the Court that our client had paid all outstanding infringement notices.


Careful arguments were made as to our client's outlook for his employment, economic and social well being if he were to be convicted for an offence of dishonestly. The Court was directed to relevant provisions of the Estate Agents Act relating to the ongoing probity requirements our client was subject to as part of his employment as a real estate agent representative.


Our submission was that the Court could impose an outcome that did not result in a conviction for the offence of Obtain Financial Advantage y deception.


Sentencing outcome achieved


The Court w persuaded that all relevant sentencing objectives could be met through a fine of $750 and did not record a conviction. The non-recording of a conviction provided our client with further scope to retain his employment.




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