Embezzlement is characterised as a financial fraud in which the defendant who is entrusted and has lawful access to assets or funds of their employer, thieves or misappropriates these funds or assets. Participating is such an activity is a crime and can be found in section 157 of the Crimes Act 1900 (NSW) which states that:
Whosoever, being a clerk, or servant, fraudulently embezzles, either the whole or any part of, any property delivered to, or received, or taken into possession by him or her, for, or in the name, or on the account of, his or her master, or employer, shall be deemed to have stolen the same, although such property was not received into the possession of such master, or employer, otherwise than by the actual possession of such clerk, or servant, and shall be liable to imprisonment for 10 years.
As seen in section 157 of the Crimes Act 1900 (NSW), Individuals who are found guilty of embezzlement may find themselves liable to imprisonment of up to 10 years. However, this maximum penalty is generally incurred for those who have their matter dealt with in the District Court and is reserved for significant offences. If the matter is dealt with in the Local Court, sentencing is dependant on the monetary value of the embezzled assets or money. The maximum penalties for embezzlement in the Local Court include the following:
- If the value exceeds $5,000: 2 years imprisonment and/or 100 penalty units ($11,000 fine)
- If the value does not exceed $5,000: 2 years imprisonment and/or 50 penalty units (5.500 fine)
- If the value does not exceed $2,000: 2 years imprisonment and/or 20 penalty units (2,200 fine).
However, there are many other alternative penalties that a Court may impose, that could potentially be more favourable for those who are found guilty of embezzlement. While the most serious penalty is imprisonment, other penalties that the Court may find appropriate include home detention, an Intensive Correction Order (ICO), Conditional Release Order (CRO), Community Corrections Orders (CCO), good behaviour bonds or a fine.
The delivery of alternative punishments are highly depending on personal circumstances, criminal history and the nature surrounding the crime. If these factors are all relatively insignificant, some individuals may even have their matter dealt with by the means of a section 10 dismissal meaning that the Court does not record a criminal record, and penalties are avoided altogether. If the matter is dealt with in this way, The Court may impose various conditions on the individual and if these conditions are breached, the privilege may be revoked. To achieve the best outcome possible should you be facing charges of embezzlement, it is advised to seek legal representation from our experienced criminal defence lawyers at Benjamin Leonardo – The Defenders.
To be found guilty of embezzlement as per section 157 of the Crimes Act 1900, the prosecution must prove the following beyond a reasonable doubt.
- That you were a clerk or servant to the owner of the assets at the time the offence occurred; and
- That you misappropriated assets belonging to the owner you served by receiving, delivering or taking the assets into your possession in a fraudulent manner
If you tend to agree with the embezzlement charges set out against you, you have the option to plead guilty. In this circumstance, you will proceed to sentencing where you could be facing up to 10 years in gaol if convicted in the District Court.
However, pleading guilty can be more favourable as opposed to being found guilty otherwise. Typically, a guilty plea demonstrates remorse and regret in which the Court may be more inclined to enforce alternative penalties or reduce gaol terms. Our Sydney based sexual assault lawyers may also be able to negotiate a deal with the prosecution team, given you enter a guilty plea. We work closely with all the clients we represent and provide honest advice if it is in your best interest to plead guilty or not guilty.
Should you decide to plead not guilty to the charges of embezzlement the prosecution team will need to establish and prove that you did commit the crime as per section 157 of the Crimes Act 1900 (NSW). If they are successful, you could be found guilty and a penalty will be enforced by the Court.
However, if the prosecution is unable to prove beyond a reasonable doubt that the crime was committed, you will be found not guilty. Therefore, as criminal defence lawyers, we will cross-examine the evidence provided by the prosecution team to cast doubt on its reliability. We also utilise various defence strategies in order to dismiss any allegations that are made against you.
If you are facing charges of embezzlement, it is advised to seek the expertise of our criminal defence lawyers immediately due to the serious nature of the offence. At Benjamin Leonardo – The Defenders we have wealth of experience defending various criminal charges and are dedicated to achieving the best outcome possible.
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There are many defences that can be used in criminal cases. When appropriate, our Sydney based fraud lawyers may use any of the following defences in relation to charges of embezzlement.
Duress: Can be successfully raised by our criminal defence lawyers if it can be proven that the defendant was coerced to participate in unlawful activities that they would have not usually participated in as the result of harmful threats. This coercion can take form of harmful threats such as death or grievous bodily harm in which the accused believes that if they do not participate in the activity, the threats will take place.
Necessity: Involves circumstances where unlawful activities may become acceptable and justifiable in instances where the accused can prove that they were in imminent danger by either human or natural forces. To prove that acts were a form of necessity, it must be established that the activity was only undertaken in order to avoid particular consequences that are deemed as “irreparable evil”, the individual must holistically believe that they were in a situation of “imminent peril” and that the individual believed they had no other alternatives to avoid the impending threat.
The offence of larceny is generally classified as a table offence and therefore will be heard at a Local Court. However, in some instances, it may be dealt with at the District if elected by either yourself or the prosecution.
While we are a Parramatta and Sydney based criminal law firm, Benjamin Leonardo – The Defenders have a wealth of experience in defending criminal cases all over NSW. Therefore, we are able to effectively represent our clients regardless of the location.
Schedule a first consultation with our criminal defence lawyers now.