The offence of Obtain Property by Deception is prosecuted under Section 81 of the Crimes Act 1958 Victoria.
To secure a conviction against an accused, the police must prove beyond reasonable doubt the following elements.
What the prosecution must prove
- 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.
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  VSCA 160; R v King  QB 547).
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  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  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  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  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  VR 962; R v King  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  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  2 VR 157; R v Clarkson  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  AC 370).
The offence of Obtain property by deception carries a maximum penalty of 10 years imprisonment (Section 81 of the Crimes Act 1958 (Vic).
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.
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%
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
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 and we can organise a free case assessment for you.