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7.5.13 - Obtaining a Financial Advantage By Deception

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Overview

  1. It is an offence to obtain a financial advantage by deception (Crimes Act 1958 s82).
  2. The offence has the following three elements:
    1. The accused obtained a financial advantage for himself or herself or another;
    2. The accused used deceit to obtain the financial advantage; and
    3. The accused obtained the financial advantage dishonestly (Crimes Act 1958 s82. See, e.g., R v Vasic (2005) 11 VR 380; Anile v The Queen [2018] VSCA 235R, [187]).

    Relationship With Other Property Offences

  3. The offence of obtaining a financial advantage by deception was created for cases where the accused dishonestly obtained credit or services – circumstances not covered by the offences of theft (Crimes Act 1958 s72) or obtaining property by deception (Crimes Act 1958 s81) (R v Vasic (2005) 11 VR 380).
  4. Like the offences in ss74, 75, 75A, 76, 77 and 81 of the Crimes Act 1958, the offence of obtaining a financial advantage by deception must be committed "dishonestly".
  5. However, unlike those offences, s82 does not require the offence to have been committed:

    Obtaining a Financial Advantage

  6. For the first element to be met, the jury must be satisfied that:

    Obtaining

  7. The accused must have "obtained" a financial advantage (Crimes Act 1958 s82(1)).
  8. This differs from theft, where the accused must have "appropriated" the property by adversely assuming any of the owner’s rights (see Theft).
  9. The word "obtains" is not defined for the purposes of s82.[1] It should be given its ordinary meaning.
  10. The accused does not need to have obtained the financial advantage for him or herself. This element will be satisfied if s/he obtained the financial advantage for another person (Crimes Act 1958 s82(1). See, e.g., Richardson v Skells [1976] Crim LR 448; Anile v The Queen [2018] VSCA 235R, [187]).
  11. Where the accused deceives someone with the intention of obtaining a financial advantage, but fails to obtain the financial advantage, s/he may be guilty of attempting to obtain a financial advantage by deception (R v Kalajdic [2005] VSCA 160; R v King [1987] QB 547).

    Financial Advantage

  12. The thing that the accused obtained must have been a "financial advantage" (Crimes Act 1958 s82(1)).
  13. The Act does not define "financial advantage". The words should be given their plain meaning, and should not be narrowly construed (R v Walsh (1990) 52 A Crim R 80; Matthews v Fountain [1982] VR 1045).
  14. If the term “financial advantage” needs to be elaborated upon, then it occurs where a person obtains a more favourable economic, monetary or commercial position than otherwise (Fisher v Bennett (1987) 85 FLR 469, 472; Taylor v The Queen [2019] VSCA 162, [99]).
  15. The term "financial advantage" was intended to be broader than the term "pecuniary advantage" (which is used in s16 of the Theft Act 1968 (UK)), and to cover at least all of the things covered by that term (R v Vasic (2005) 11 VR 380).
  16. Thus, a "financial advantage" includes (but is not limited to) the following circumstances (which were covered by s16 of the Theft Act 1968 (UK) at the time s82 was introduced):
  17. A financial advantage may include a situation where a person obtains the opportunity to earn remuneration in employment (Taylor v The Queen [2019] VSCA 162, [99]-[101]).

    Evading Debts

  18. A person obtains a financial advantage by evading a debt, even if the evasion is only temporary (R v Vasic (2005) 11 VR 380; R v Turner [1974] AC 357).
  19. A financial advantage is obtained whenever a debt is deferred, no matter how poor the accused is. This is because the accused is relieved of a claim upon such money or ability to generate it as they may have, for the period of the deferral (R v Vasic (2005) 11 VR 380).
  20. A financial advantage will therefore be obtained when a creditor is given a cheque which the debtor knows to be worthless, in pretended payment of the debt. In such circumstances, the debtor gains the advantage of having the debt deferred (R v Vasic (2005) 11 VR 380; Matthews v Fountain [1982] VR 1045).
  21. A person will not be guilty of obtaining a financial advantage by deception simply because s/he cannot repay a debt. S/he will only be guilty if s/he evades the debt by deception (e.g., by falsely telling the debtor that s/he is not able to repay the debt) (R v Vasic (2005) 11 VR 380).

    Deception

  22. The second element requires the accused to have obtained the financial advantage by deception (Crimes Act 1958 s82(1)).
  23. "Deception" has the same meaning as it does for the offence of obtaining property by deception (Crimes Act 1958 s82(2); Smith v R (1982) 7 A Crim R 437 (Vic CCA)).
  24. See Obtaining Property by Deception for further information concerning this element.
  25. The judge must direct the jury about the need for unanimity on the particular deception used (Magnus v R (2013) 41 VR 612; R v Brown (1984) 79 Cr App R 115; R v Holmes [2006] VSCA 73).

    Dishonesty

  26. The third element requires the financial advantage to have been obtained "dishonestly" (Crimes Act 1958 s82(1); R v Salvo [1980] VR 401).
  27. This requirement is additional to the requirement that the financial advantage be obtained "by deception". The prosecution must prove that when the accused, by deception, obtained the financial advantage, s/he was acting dishonestly (R v Salvo [1980] VR 401; Pollard v Cth DPP (1992) 28 NSWLR 659).
  28. See Obtaining Property by Deception for information concerning this element.

    Offences Committed by Bodies Corporate

  29. The offence of obtaining property by financial advantage may be committed by a body corporate (Crimes Act 1958 s84).
  30. Where an offence committed by a body corporate is proved to have been committed with the consent or connivance of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, that person will also be guilty of the offence (Crimes Act 1958 s84(1)).
  31. Where the affairs of the body corporate are managed by its members, the members may also be found guilty of the offence (if they acted in connection with their management function) (Crimes Act 1958 s84(2)).

    Extraterritorial Offences

  32. It is not necessary that the financial advantage was obtained in Victoria. Section 82 applies where there is a "real and substantial link" between the relevant act and Victoria (Crimes Act 1958 s80A).
  33. The concept of a "real and substantial link" is defined in s80A(2). It includes cases where:
  34. The words in s80A should be given their natural meaning (R v Keech (2002) 5 VR 312).
  35. An act which forms an essential link in the chain of deception (rather than merely being part of the surrounding circumstances) is a "significant part" of the relevant conduct (R v Keech (2002) 5 VR 312).

    Notes

[1] This is in contrast to the offence of obtaining property by deception (Crimes Act 1958 s81), for which "obtains" is defined to mean obtaining ownership, possession or control (see Obtaining Property by Deception).

Last updated: 28 August 2019

In This Section

7.5.13.1 - Charge: Obtaining a Financial Advantage By Deception

7.5.13.2 - Checklist: Obtaining a Financial Advantage by Deception

See Also

7.5 - Dishonesty and Property Offences

7.5.1 - Theft

7.5.2 - Robbery

7.5.3 - Armed Robbery

7.5.4 - Burglary

7.5.5 - Aggravated Burglary

7.5.6 – Home Invasion

7.5.7 – Aggravated Home Invasion

7.5.8 – Carjacking

7.5.9 – Aggravated Carjacking

7.5.10 - Handling Stolen Goods

7.5.11 - Recent Possession

7.5.12 - Obtaining Property By Deception

7.5.14 - Making or Using a False Document

7.5.15 - Blackmail

7.5.16 - Criminal Damage

7.5.17 - Criminal Damage Intending to Endanger Life

7.5.18 - Criminal Damage With a View to Gain

7.5.19 - Arson

7.5.20 - Arson Causing Death

7.5.21 - Intentionally or Recklessly Causing a Bushfire