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Fraud, Stealing, And Theft as An Employee

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Fraud, Stealing, And Dishonesty Offences as An Employee, Clerk, Or Servant

Dishonesty offences refer to offences that include an act of dishonesty, such as:

• stealing; or
• fraud.

The nature of employment means that employees are put in a position of trust by their employer. An employee committing one of these offences involves a breach of this trust.

The Court takes such offences committed by an employee against their employer seriously.

In QLD, the dishonesty offences an employee may be charged with include:

• stealing as a clerk or servant; or
• fraud as an employee.

Aitken Whyte Lawyers can represent you for both of these offences. If you need knowledgeable and experienced criminal law advice, contact us today.

What The Law Says About Stealing

Section 391 of the Queensland Criminal Code covers stealing generally and states:

(1) A person who fraudulently takes anything capable of being stolen, or fraudulently converts to the person’s own use or to the use of any other person anything capable of being stolen, is said to steal that thing.

CRIMINAL CODE 1899 – SECT 391

Section 398 of the Queensland Criminal Code discusses the punishments for stealing. Regarding stealing as an employee, this section of the Code states:

If the offender is a clerk or servant, and the thing stolen is the property of the offender’s employer, or came into the possession of the offender on account of the offender’s employer, the offender is liable to imprisonment for 10 years.

CRIMINAL CODE 1899 – SECT 398

What The Law Says About Fraud

Section 408C of the Queensland Criminal Code states that:

(1) A person who dishonestly—

(a) applies to his or her own use or to the use of any person—

(i) property belonging to another; or

(ii) property belonging to the person, or which is in the person’s possession, either solely or jointly with another person, subject to a trust, direction or condition or on account of any other person; or

(b) obtains property from any person; or

(c) induces any person to deliver property to any person; or

(d) gains a benefit or advantage, pecuniary or otherwise, for any person; or

(e) causes a detriment, pecuniary or otherwise, to any person; or

(f) induces any person to do any act which the person is lawfully entitled to abstain from doing; or

(g) induces any person to abstain from doing any act which that person is lawfully entitled to do; or

(h) makes off, knowing that payment on the spot is required or expected for any property lawfully supplied or returned or for any service lawfully provided, without having paid and with intent to avoid payment;

commits the crime of fraud.

CRIMINAL CODE 1899 – SECT 408C

This section goes on to say that:

(2) The offender is liable to imprisonment for 14 years if, for an offence against subsection (1) —

(b) the offender is an employee of the victim;

CRIMINAL CODE 1899 – SECT 408C

Acts That Constitute Stealing as An Employee or Fraud as An Employee

There are many actions that can result in a charge of stealing or fraud.

They can range from one-off offences to systematic, dishonest behaviour. Such actions can include:

• taking money from the till;
• taking merchandise or stock;
• unauthorised use of petty cash;
• not recording cash sales and pocketing the difference between recorded and actual sales;
• transferring money from business bank accounts;
• creating false invoices for payment;
• adding unauthorised overtime to pay slips;
• using points accrued on company cards, such as frequent flyer points, for personal use;
• submitting false expenses or receipts for reimbursement of items not purchased for work;
• receiving kickbacks from business suppliers without the employer’s knowledge; or
• submitting false sales reports or customer details to obtain commissions.

For a charge of stealing, one of the requirements is that the thing taken must have been capable of being stolen. Usually, stealing consists of physically removing an item, such as merchandise.

Fraud can occur if an employee uses something of their employers for their own benefit. It can also occur if an employee acts dishonestly, or deceives their employer, to gain a benefit. For example, an employee lying on their timesheet may amount to fraud.

Charges usually result from an employee, during the course of employment, unlawfully acquiring:

• money; or
• goods.

Depending on the circumstances, police may charge the person with stealing or fraud.

The Serious Nature of Dishonesty Charges

Per the legislation outlined above, both offences can carry heavy penalties. Both can result in a term of imprisonment.

For this reason, it is important to engage a law firm that is experienced with these types of offences.

Our lawyers have represented clients charged with serious dishonesty offences. These offences include fraud as an employee over $100,000. We can provide knowledgeable advice and skilled representation.

If you are in this situation and need assistance, contact us to speak to a criminal defence lawyer.

Impact On Your Employment

These charges may impact both your current and future employment. This is in addition to the Court ramifications of a criminal offence.

Theft and fraud both meet the definition of “serious misconduct” under the Fair Work Act. This means your employer can summarily dismiss you due to such conduct.

If you are convicted of the offence, that conviction may be recorded on your criminal history. This can make it difficult to obtain future employment, due to the nature of the offence.

The Court will usually record a conviction and must do so if a period of imprisonment is imposed. In some cases though, you can argue that the Court should not record a conviction.

If a conviction is not recorded, you may still need to disclose it, however, in some circumstances.

It can be difficult to convince the Court that a conviction should not be recorded. Having a lawyer make this argument on your behalf will increase your chances of success. When deciding whether to record a conviction, the Court will consider:

• the nature and seriousness of the offence;
• the age, background, and character of the defendant; and
• the likely impact of a conviction, including on the defendant’s future employment prospects.

Case law also tells us, however, that the Courts may consider that:

• such information should not be concealed from future employers; and
• employers who undertake criminal history checks are entitled to be made aware of it.

It is, as such, a high bar to convince the Court that a conviction should not be recorded. If applicable to your case, we will present persuasive arguments and case law in your favour.

If the recording of a conviction is a concern you hold, you should contact a lawyer to discuss your options. We can advise you on your prospects for seeking that no conviction be recorded at sentence.

Which Court Will Hear the Charge?

All charges begin in the Magistrates Court. From there, they may either be finalised in the same Court or progress to the District Court.

The Magistrates Court can finalise the charge by way of a:

• sentence;
• contested sentence; or
• summary hearing.

If the matter proceeds to the District Court, the Court may finalise it by way of:

• sentence;
• contested sentence; or
• trial.

Whether the charge is indicted to the District Court will usually depend on how serious it is. This is based on the amount taken or quantum of the damage suffered by the employer. For fraud and stealing charges, it may also be up to the defence’s or prosecution’s election. This means the parties may be able to choose whether to send the matter up to the District Court.

We can review the material and advise you on:

• whether your matter can be finalised in the Magistrates Court, or if it must proceed to the higher Court; and, if you can elect the Court
• the pros and cons of choosing to indict your matter.

We will ensure your understanding of the process and options so that you can make an informed choice.

Likely Penalties and What the Court Considers When Sentencing

The maximum penalties for fraud and stealing are set out, per the legislation, above. The Court then has a significant degree of discretion when determining a sentence.

A term of imprisonment is a common penalty for these offences, due to the betrayal of trust involved.

A term of imprisonment may:

• require a defendant to spend actual time in custody; or
• be “wholly suspended”.

If the sentence is wholly suspended, the defendant may remain in the community. They must not commit another offence for the term of the suspension. If they do, they risk the suspended sentence being activated.

There are steps that can be taken to mitigate the possibility of imprisonment. To effectively reduce the penalty, the Court should be made aware of all factors that go in your favour.

When sentencing, the Court will consider:

• the amount stolen or quantum of the loss incurred due to fraud;
• the duration over which the theft or fraud occurred;
• any restitution paid by the defendant;
• the defendant’s prior criminal history;
• the defendant’s personal circumstances at the time, for example, any financial hardship;
• the defendant’s background and personal history, including character and mental health; and
• any remorse or lack of remorse expressed by the defendant.

There is preparation you can do to improve your outlook at sentence. Steps can include:

• obtaining a pre-sentence report from a psychologist;
• getting character references from people who know you; and
• making efforts to pay back your employer.

The Court will look favourably at genuine steps taken to make amends. These can also be a good demonstration of remorse.

We can assist you to undertake this preparation. We will also make submissions to the Court on your behalf in mitigation of the penalty.

Engaging experienced lawyers can lead to a significantly better outcome. Our lawyers are skilled in the best way to present your matter to the Court.

If you would like to discuss representation, contact us to speak to a criminal defence lawyer.

Justice Mediation

In such matters, the victim and complainant will be your employer. This can present an opportunity to engage in Adult Restorative Justice Conferencing (ARJC). ARJC is also referred to as Justice Mediation.

ARJC is a form of mediation between the parties to try to reach an out-of-court settlement. It allows the employee an opportunity to offer to make restoration. The employer may accept this as an alternative to the matter being prosecuted in Court.

Both parties must agree to participate. The usual process is for:

1. the parties to discuss how the offending impacted the victim; and
2. the defendant to apologise for their actions and offer to make amends.

Any agreement reached between the parties will serve to settle the matter. Agreements must remain confidential.

An agreement may include for the defendant to:

• provide a written apology;
• undertake counselling; and
• pay back their employer.

The agreement should also state that once completed, disputes between the parties are resolved.

ARJC usually occurs when the offence is relatively minor. It can, however, sometimes be undertaken when the charges are more serious. It will generally have better prospects of success if:

• you have the means to pay back your employer in full; and
• you take full responsibility for your actions.

We can discuss this possibility with you. If mediation is something you would like to do, we can request your matter be referred for ARJC.

Will I Be Sued by My Employer?

If an employer has lost a significant sum, they may:

• contact the police; and, in addition
• commence civil proceedings against you to recover their loss.

Civil proceedings may include:

• asking the Court to order you to repay your employer; and
• applying to freeze your bank accounts so that you cannot deal with your money until the matter is settled.

As we are a full-service law firm, we can assist you with both the criminal law and civil law elements you might face. We have lawyers:

• who dedicatedly practice criminal defence; as well as
• who solely practice in litigation.

Our team work closely together to provide a considered and comprehensive approach.

If we are assisting you with your criminal matter, you will also be able to speak to our litigation lawyers. We will provide you with advice on all aspects of your matter so that you only need to engage one firm.

If there are civil proceedings against you, one option may be to “stay” the proceedings. This means the litigation will be put on pause until the criminal matter is finalised. The Court will not make any findings until your criminal matter is at an end.

This may give you time to reach an agreement with your employer to settle the matter. It may be that you can agree to settle the civil dispute as part of the finalisation of your criminal proceedings.

Should you require assistance with Court proceedings, we can represent your interests. Contact us to speak to a criminal defence or litigation lawyer.

Defences To Stealing and Fraud as An Employee

Depending on the circumstances, there may be a defence available to your charge.

It is a defence if the accused person:

• made an honest and reasonable mistake in committing the offence; or
• genuinely and reasonably believed they were entitled to what was taken.

It may also be the case that the accused person:

• believed they were reasonably entitled to something; but
• was aware that their employer did not approve them taking or using it.

For example, if there is a pay dispute between the employer and employee. The employee may keep items of value belonging to their employer. The employee may believe this is fair compensation for the disputed pay they did not receive.

This can become complex and is not necessarily a defence. It may, however, provide a basis for:

• negotiating with the prosecution to discontinue the charge; or
• mediating an out-of-court settlement.

Focused On Results

Facing criminal charges of fraud or theft as an employee can be a daunting experience. These charges can:

• carry harsh penalties;
• cause financial stress if you are sued; and
• damage your reputation and future employment prospects.

The role of our law firm is to ease this process and minimise the impact of these charges on you.

We are committed to providing you with the highest level of legal representation. Our lawyers will fight to protect your rights. We are focused on results, and ensuring you receive the best possible outcome.

We understand the complexities of such cases. Our experienced lawyers work diligently to navigate the legal landscape on your behalf. Engaging our law firm means putting your trust in lawyers who are result-oriented.

Criminal charges should not jeopardise your future. Our lawyers are here to help you navigate this challenging time.

Should you need help with these or any other charges, our lawyers can assist with all criminal law matters.

Contact us today.

Office Location and Contact Details

Brisbane

Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000

Ph: 07 3229 4459
Fax: +617 3211 9311
E: enquiries@awbrisbanelawyers.com.au