Key Differences Between Embezzlement & Fraud

You’ve probably seen the terms “embezzlement” and “fraud” tossed around in conversations, perhaps in news headlines or workplace discussions. While you might be familiar with these terms, you may not understand what they mean and how they differ.

So, what is embezzlement? Who does it involve, why is it committed, and what makes it different from fraud? This article answers these questions among a range of others to ensure you understand all the key differences between embezzlement and fraud, ensuring you can approach these cases with confidence. 

Ultimately, both embezzlement and fraud are illegal and punishable, and legal representation is highly advisable. Regardless of the form of misconduct you’re dealing with, having a skilled criminal defence lawyer by your side can be your lifeline in navigating the complexities of these cases. 

 

What is Embezzlement?

What does embezzlement mean, really? In simple terms, embezzlement is a form of serious financial misconduct. It occurs when someone who has been trusted to manage or control funds, assets, or property intentionally misappropriates or steals them for their own personal gain. The crucial factor to note in embezzlement cases is that they involve a breach of trust, where an individual abuses their position or authority for unlawful financial benefit.

Embezzlement can take place in a range of different environments, with workplaces and nonprofit organisations being common breeding grounds. In these environments, employees already have access to the assets, and this typically makes it easier for them to divert funds meant for legitimate purposes into their own pockets without detection. 

 

What is Fraud?

Fraud is a broader concept than embezzlement, and it encompasses a range of deceptive practices aimed at gaining an unfair or unlawful advantage, typically through deceit or manipulation. It includes activities such as misrepresentation, forgery, or falsifying documents to achieve financial gain or other benefits. Unlike embezzlement, fraud doesn’t necessarily involve the misappropriation of entrusted funds or assets but rather relies on fraudulent actions or intent.

To distinguish it from embezzlement, consider the key elements of fraud: deception, intention to deceive, and illicit gain. These elements differentiate fraud from embezzlement, where the breach of trust and misappropriation of entrusted resources are the primary concerns. In these cases, the victim is often entirely unaware that they have been deceived until after the act has been committed. 

 

Comparative Examples of Embezzlement and Fraud

In order to further distinguish embezzlement from fraud, consider these examples of financial wrongdoing. 

Embezzlement Scenario: 

Imagine you work in a small, trusted accounting firm. Your colleague, Sarah, has access to the company’s bank accounts and clients’ financial data. Over time, Sarah secretly transfers substantial sums of money from the company’s accounts into her own. She justifies it as “borrowing” with the intent to repay but never does. This is a classic case of embezzlement.

Fraud Scenario:

Now, consider a different scenario. John, an individual claiming unemployment benefits, provides false information to Centrelink, exaggerating his financial hardship. He fabricates documents to support his claims, leading to undeserved government payouts. This is a clear instance of Centrelink fraud, a form of fraud that involves deceit and manipulation for personal financial gain.

The key difference in these illustrative examples lies in the nature of the wrongdoing. Embezzlement involves someone misappropriating entrusted funds for personal use, often within a workplace setting. In contrast, fraud encompasses a broader range of deceptive practices, including misrepresentation, forgery, or manipulation to achieve illicit financial gains, as seen in the Centrelink fraud scenario.

 

Legal Consequences and Penalties for Embezzlement 

Embezzlement is a serious offence with substantial legal consequences. The penalties for embezzlement can vary depending on factors like the value of embezzled assets or money and whether the case is dealt with in the District Court or the Local Court.

In the District Court, individuals found guilty of embezzlement may face imprisonment for up to 10 years. However, in the Local Court, the penalties are determined by the value of the embezzled assets:

• If the value exceeds $5,000: 2 years imprisonment and/or 100 penalty units (equivalent to a $11,000 fine). Therefore, the jail time for fraud over $5000 is 2 years. 
• If the value does not exceed $5,000: 2 years imprisonment and/or 50 penalty units (equivalent to a $5,500 fine).
• If the value does not exceed $2,000: 2 years imprisonment and/or 20 penalty units (equivalent to a $2,200 fine).

It’s important to note that alternative penalties may be considered by the court, taking into account individual circumstances, criminal history, and the nature of the crime. These alternative penalties may include home detention, an Intensive Correction Order (ICO), a Conditional Release Order (CRO), Community Corrections Orders (CCO), good behaviour bonds, or fines. In some cases, a section 10 dismissal may also be an option, meaning no criminal record is recorded if certain conditions are met.

 

Legal Consequences and Penalties for Fraud

Fraud is a wide-ranging offence with penalties that vary depending on the specific fraud-related crime committed. Generally, fraud-related offences can result in maximum penalties of imprisonment for 5 to 10 years, as per the Crimes Act 1900.

For instance, under section 192E of the Act, the maximum penalties for fraud are:

• Imprisonment for 10 years if convicted in the District Court.
• 2 years imprisonment if convicted in the Local Court.

However, it’s important to note that while the maximum penalties may be severe, the actual outcomes vary.

The court has the discretion to impose alternative punishments, with 31% of individuals receiving non-custodial orders and 45% receiving monetary orders. These alternatives may include community corrections orders, intensive corrections orders, conditional release orders, or fines.

 

Legal Defences For Embezzlement And Fraud

In both embezzlement and fraud cases, the choice of defence strategy is critical, and it’s best left in the hands of experienced criminal defence lawyers. These legal professionals can assess the specific circumstances of each case and determine the most appropriate defence. 

Duress can be an effective form of defence in cases of both embezzlement and fraud. If the legal representative can prove the individual was coerced into criminal activities through threats or intimidation, such as death or grievous bodily harm, the defence of duress may apply.

Alternatively, in cases where unlawful activities may seem justifiable due to imminent danger caused by human or natural forces, the defence of necessity may be used. To establish this defence, it must be shown that the accused undertook the activity solely to prevent “irreparable evil” consequences. It must be proven that the individual genuinely believed they were in imminent peril, and had no reasonable alternatives to avoid the threat.

 

Seek Legal Advice Today

Embezzlement and fraud are two different financial crimes that have a number of notable differences. While embezzlement involves the misappropriation of entrusted assets, fraud encompasses a broader range of deceptive practices. Crucially, embezzlement involves a breaking of trust, while fraud is characterised by deceit. 

The legal consequences of these crimes differ, but the most effective defences presented by criminal defence lawyers are relatively similar. When facing embezzlement or fraud charges, don’t underestimate the importance of legal representation. Seek the assistance of skilled lawyers who can advocate for your rights and help you navigate the complexities of the legal system.