Our firm routinely represents individuals accused of dishonesty offences, ranging from simple theft matters to burglaries and aggravated burglaries, to serious allegations of obtaining a financial advantage by deception and obtaining property by deception.
Routinely these cases involve complicated financial documentation, requiring close analysis and, on occasion, the services of a forensic accountant.
Theft, deception and dishonesty
In recent times the liability of company directors has been expanded greatly in a number of areas. Conduct which formerly attracted civil penalties now attract criminal penalties including fines and imprisonment. The Corporations Act 2001 (Cth) imposes a significant number of obligations and duties on Company Directors and Officers such as:
- the duty of care and diligence;
- the duty of good faith; and
- the duty not to trade whilst insolvent.
There are a number of other obligations imposed on Directors if the company falls into liquidation.A failure by a Director to comply with his or her obligations and duties may lead to possible criminal charges and/or civil penalty proceedings.
In fraud and theft cases, we see an intersection between the State and Federal Jurisdictions, as increasingly more frauds are committed using carriage services and the internet. Since Project Wickenby was launched by the Australian Taxation Office, we are also seeing more prosecutions for tax fraud, prosecuted by the Commonwealth. Where frauds are committed by Public Sector Employees and they come for sentence, there are continuing criminal enterprise sentencing provisions in Victoria which increase sentences for people who fall within the scope of the provisions.
In more recent times, the evidence elicited as part of the Royal Commission into the Banking Sector arguably discloses not just breaches of corporations legislation but also theft and dishonesty offences under the Victorian state legislation. For example, a financial advisor who gives a customer blatantly false and misleading advice which encourages them to invest money with the bank, from which the advisor will make a commission (but which causes the customer to lose their money) could arguably be charged with obtaining a financial advantage by deception. We have seen this in evidence from the Commission, where financial advisors have encouraged individuals and families to invest their superannuation funds into property but do not tell them that they cannot live in that property without breaching superannuation legislation. Arguably, had the correct advice been given, the customers would not have invested their money in accordance with the financial advisor’s advice and the advisor would not have obtained the commission.
Moving forward from the Commission, law enforcement agencies may be called in to bring criminal charges against individuals working within the banking sector, in circumstances where previously they would not have been criminally pursued but, perhaps, only pursued by the regulator. The challenge for the criminal justice system will be how to balance prosecutions by Police and ASIC in circumstances where they relate to the same factual circumstances.
As with complex fraud, confiscation and Commonwealth matters, large dishonesty matters require a thorough and forensic approach balanced with the ability to manage large volumes of material. Our team possesses the skill set to discriminate between different forms of evidence, analyse the pertinent aspects of the materials and assess the weaknesses in otherwise difficult prosecutions. We are also in touch with the very best forensic accountants and advisors, who assist our firm in complicated mortgage and financial matters, to ensure that every possible avenue for defence is explored and utilised.The intersection of Corporations Law and Criminal Law is a major area of interest for Galbally Parker and we keep abreast of all the changes in all facets of these areas.
As experienced practitioners in so called “white collar crime”, Galbally Parker recognises and caters to the specific needs of the corporate client.
For example, in 2017, we acted on behalf of two people alleged to have committed large scale fraud offences involving millions of dollars arising out of a business. Following a lengthy committal in the Magistrates’ Court, both clients were discharged on all charges and Victoria Police was ordered to pay costs of the proceeding. This was a fantastic result for our clients and can be attributed to our lawyers’ in depth knowledge of white collar crime legislation and to the barristers whom we brief, who are undoubtedly the best in this jurisdiction.
There are too many different forms of theft, fraud and dishonesty offences at the Commonwealth and State level for us to detail the laws in relation to them in any detail. However, if you are charged with such an offence, or are concerned that you will be charged with such an offence, please contact our experienced criminal lawyers for a complementary consultation regarding your options.
These offences are committed where the offender enters a building as a trespasser with an intent to steal or commit an offence involving assault or damage. Aggravated burglary may arise in circumstances where there is a person present in the building when the trespasser enters or, the trespasser is carrying with them a firearm or explosive or imitation thereof.
These offences are serious, particularly in the case of aggravated burglary, and often intersect with other offences, such as theft, drug offences or stalking. In recent years, the Courts have witnessed an escalation of ‘ice’ related burglaries and so the sentences have increased as a way of deterring people from committing these offences in order to fuel their drug problems. However, we attempt to take a multi-faceted approach when we encounter drug related offending of this kind, which involves assisting our clients with rehabilitation, CREDIT or CISP bail, negotiating or defending charges and obtaining the very best possible result, whether that is a lenient sentence or a verdict of acquittal.
In 2016, we acted on behalf of a youthful man charged with armed robbery, a serious offence that carries a maximum penalty of 25 years of imprisonment. Our firm conducted a plea on behalf of our client in the County Court. As part of the plea, we made numerous submissions to inform the Judge of the reasons why our client should receive as lenient sentence as possible. Our client was ultimately spared gaol and was sentenced to a Community Corrections Order with community work and treatment conditions.
If you are charged with a burglary offence, please contact our experienced criminal lawyers for a complementary first consultation.