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  • Shaun Pascoe

Property Offences: Obtain Property by deception.

Updated: Apr 16

We explain the elements, defences & penalties of Obtain Property by Deception


The offence of Obtain Property by Deception is an indictable offence and is prosecuted under Section 81 of the Crimes Act 1958 Victoria.


What the prosecution must prove for Obtain Property by Deception


- the accused obtained property belonging to another.

- the accused did so with the intention of permanently depriving the other of the property.

- the accused used deceit to obtain the property.

- the accused obtained the property dishonestly.


Obtaining


1. The accused “obtains” property by deception if s/he obtains ownership, possession, or control of it (Crimes Act 1958 s81(2)).


2. This element will be satisfied if an accused obtained property for another person or enabled another person to obtain or retain the property (Crimes Act 1958 s81(2)).


3. Where the accused deceives someone with the intention of obtaining property, but fails to obtain the property, s/he may be guilty of attempting to obtain property by deception (R v Kalajdic [2005] VSCA 160; R v King [1987] QB 547).


Property


4. The thing that the accused obtained must have been “property” (Crimes Act 1958 s81(1)).


5. Sections 73(6) and 7 of the Crimes Act 1958 (concerning when land and wild animals are “property”) do not apply to the offence of obtaining property by deception (R v Salvo [1980] VR 401).


Belonging to another


6. The accused must have obtained property “belonging to another” (Crimes Act 1958 s81(1)).


7. The prosecution needs only to establish that someone other than the accused had the relevant property rights. There is no requirement that the prosecution prove who held those rights (Lodge v Lawton [1978] VR 112).


Intention to permanently deprive


This element requires the accused to have intended to permanently deprive the owner of the property when s/he obtained it (Crimes Act 1958 s81(1); R v Salvo [1980] VR 401).


Using deceit to obtain the property


8. The accused must have obtained the property by deception (Crimes Act 1958 s81(1); R v Salvo [1980] VR 401).


9. For this element to be met, the prosecution must prove that:


· The accused made a representation by words or conduct.

· The representation was about existing or past facts or law.

· The representation was false.

· The accused knew the representation was false or was reckless as to whether it was true or false.

· The accused intended to obtain the property by making the representation.

· The false representation was believed by the victim (who was thereby deceived); and

· The accused obtained the property because of the deception.


Property was obtained because of the deception


10. The property must have been obtained because of the deception. That is, there must have been a causal connection between the deception used and the obtaining of the property (R v Jenkins (2002) 6 VR 81; R v Clarkson [1987] VR 962; R v King [1987] QB 547).


11. For this requirement to be met, the prosecution must prove that the deception operated on the mind of the person deceived (R v Jenkins (2002) 6 VR 81).


12. It is a question of fact for the jury to decide whether the deception was an “operative cause” of the obtaining (R v King [1987] QB 547).

13. If this causal connection is proved, the property does not need to have been obtained from the same person who was deceived (R v Benli [1998] 2 VR 157; R v Clarkson [1987] VR 962; R v Jenkins (2002) 6 VR 81).


14. It is not necessary to prove that the person deceived suffered a loss (R v Jenkins (2002) 6 VR 81; R v Kovacs [1974] AC 370).


Penalties for Obtain Property by Deception


The offence of Obtain property by deception carries a maximum penalty of 10 years imprisonment (Section 81 of the Crimes Act 1958 (Vic).


Defences to Obtain Property by Decption


The offence has several elements, and the prosecution must prove each and every element of the offence. A factual dispute may arise in respect to several elements:


  • an argument as to whether the item obtained is at law 'property'

  • an argument as to whether the property 'belonged to another'

  • whether property was 'obtained' and if so whether it was obtained with deceit

  • whether an intention to permanently deprive the owner of the property can be established


Put simply the facts upon which the prosecution seek to prove the various may be disputed.


Sentencing outcomes for Obtain Property by Deception


The gravity of this offence can vary greatly between cases. As with all property offences, the value of the property in question is a relevant indicator of the seriousness of the offence in question.


Where the value of the property exceeds $100,000 the case will be heard and determined in the County Court and is a serious indictable offence.


As a general guide to the sentencing outcomes imposed for this offence when it is heard in the Magistrates' Court, the Sentencing Advisory Council has produced statistics for the period from 2016 - 2019:

Imprisonment – 41.4%

Community Correction Order – 28.1%

Fine – 14.5%

Adjourned undertaking/dismissal/discharge – 13.2%


What are the court events for Obtain Property by Deception?


Where the allegation is for an amount less than $100,000 a case will proceed through the following stages:


  • Mention (and case conference negotiations)

  • Contest mention - where an allegation of assault cannot be finalised, and an accused may seek a sentence indication from the presiding Magistrate.

  • Contested hearing - where a mat has not been resolved at a contest mention and proceeds as a not guilty plea. If a Magistrate finds the allegation(s) have not been proven beyond reasonable doubt, the charge(s) are dismissed. Conversely, if the allegation is proven, the Magistrate will impose a sentence (as described above).

For more detail see Criminal Proceedings in the Magistrates' Court.


Where an allegation of Obtain Property by Deception cannot be finalised in the Magistrates' Court (because exceeds $100K), the courts events are:


  • Filing hearing (Magistrates' Court)

  • Committal mention (Magistrates' Court)

  • Contested committal (Magistrates' Court)

  • First and subsequent Directions hearings (County Court)

  • Trial (by jury or Judge alone). If at the conclusion of the trial an accused successfully defends the offence he or she will be acquitted. Conversely, if found guilty by jury or by a Judge (Judge alone trial) the Judge will impose a sentence.

Defences to Obtain Property by Deception

As discussed above, the prosecution must prove several offences beyond reasonable doubt. Consequently, a factual dispute may arise as to whether the prosecution can prove that property was obtain because of the deceit, or that the property was obtained because of allegedly deceitful actions. It is always important to discuss any allegation with an experienced criminal defence lawyer, so that an allegation of Obtain property by deception can be analysed considering the evidence produced by the police in a brief of evidence.


Prepare early, get advice if facing a charge of Obtain property by Deception.

The offence of Obtain property by deception is a serious offence. Early preparation is key to defending an allegation of this nature. Should you require legal advice regarding this charge, or any other criminal allegation call our office on (03) 9668 7600 or send us an email submission and we can discus your options.




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