3. Deception Offences - Deception Liabilities

Question 1

What is the legislation for obtaining by deception, s240(1)?

Answer 1

a) Everyone is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right, -
a. Obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable considerations, directly or indirectly; or
b. In incurring any debt or liability, obtains credits; or
c. Induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being uses to derive a pecuniary advantage; or
d. Cause loss to any other person.

Question 2

What are the elements of obtaining property, etc by deception - s240(1)(a)?

Answer 2

• By any deception
• Without claim of right
• Obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit or valuable consideration
• Directly or indirectly

Question 3

What is the case law regarding possession?

Answer 3

Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, the mental element is a combination of knowledge an intention; knowledge in the sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession.
(R v Cox)

Question 4

What is held regarding ‘special interest’?

Answer 4

it is sufficient if the person from whom the goods were obtained had some special property or interest in the goods without having actual ownership of them e.g. a garage owner had a ‘contractors lien’ over the goods until the debt was paid or he voluntarily parted with the goods.

Question 5

What is the definition of control?

Answer 5

means to exercise authoritative or dominating influence or command over something.

Question 6

What are the elements of obtaining credit by deception - s240(1)(b)?

Answer 6

• By any deception
• Without claim of right
• In incurring any debt or liability
• obtains credit

Question 7

What is the definition of debt, liability, and credit?

Answer 7

Debt – money owing from one person to another.

Liability – a legally enforceable financial obligation to pay e.g. the cost of a meal.

Credit – the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor.

Question 8

What is the case law regarding credit?

Answer 8

‘Credit’ refers to the obligation on the debtor to pay or repay, and the time given them to do so by the creditor. Credit does not extend to an obligation to supply services or goods.
(Fisher v Raven)

Question 9

What is held regarding intention to deceive?

Answer 9

gaining credit is not unlawful unless it is accompanied by an intent to deceive. This intention is essential and must exist at the time when the deception is perpetrated i.e. a later decision not to repay is insufficient.

Question 10

What is the case law regarding intention to deceives booking?

Answer 10

On appeal it was held that the credit had been obtained on booking but at that time the accused did not possess an intent to deceive.
(R v McKay)

Question 11

What are the elements of altering documents capable of deriving pecuniary advantage - s240(1)(c)?

Answer 11

• By any deception
• Without claim of right
• Induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter
• Any document or thing capable of being used to derive a pecuniary advantage

Question 12

What is the definition of induces?

Answer 12

to persuade, bring about or give rise to.

Question 13

What is the case law regarding inducement?

Answer 13

It is necessary to prove that the person parting with the property was induced to do so by the false representation made.
(R v Laverty)

Question 14

What are the definitions of deliver over, execute, endorse, alter, and accept?

Answer 14

Deliver over – to surrender up someone or something.
Execute – to put a course of action into effect.
Endorse – to write or sign on a document.
Alter – to change in character or composition.
Accept – to receive something

Question 15

What are the elements of causing loss by deception - s240(1)(d)?

Answer 15

• By any deception
• Without claim of right
• Causes loss to any other person

Question 16

What is the definition of loss?

Answer 16

“loss” is not defined by statue but in most cases will involve financial detriment to the victim.

Question 17

What are the punishments of obtaining or causing loss by deception?

Answer 17

• loss >$1000 = 7 years
• loss between $500-$1000 = 1 year
• Loss

Question 18

What are the elements and sentence for 240(1A)?

Answer 18

• without reasonable excuse
• sells, transfers, or otherwise makes available any document or thing capable of being used to derive a pecuniary advantage
• knowing that by deception and without claim of right
• the document or thing was, or was caused to be, delivered, executed, made, accepted, endorsed, or altered
- 3 years

Question 19

What is the definition of privilige/benefit and examples?

Answer 19

means a special right or advantage.

Examples:

• using someone elses gym membership
• access to medical services
• withdrawal of a charge or reduction in sentence

Question 20

Give examples for 240 (b), (c)

Answer 20

Obtaining credit by deception, 240(1)(b)

• booked motel with intent not to pay
• restaurant meal with intent not to pay (continued representation)

Altered documents capable of being used to derive a pecuniary advantage, 240(1)(c)

• sold car with misrepresentation to year/mileage
• someone hand over credit card based from deception

Question 21

What must be proved for causing loss by deception?

Answer 21

• loss caused by deception
• it was reasonably foreseeable some more than trivial loss would occur
• need not prove the loss was intentionally caused