Titus Day has been charged with 61 counts of dishonestly obtaining financial advantage by deception, including defrauding Guy Sebastian of $1.15 million over a seven-year period in relation to overseas royalties. Day appeared at Waverley Local Court and was granted bail.

Sebastian claims that all his income was controlled by Day into a trust account and after noticing disparities in payments, he requested financial information he was rightfully entitled to. He says this led to the deterioration of their relationship and explains, “after over a decade of partnership, I parted ways with Titus’ management company in November 2017”.

Detectives noted alleged inconsistencies in financial documentation and bank account records. Magistrate Hudson mentioned international music rights company, Premier Muzik, made 24 payments into the account for the services of Sebastian from January 2015 to March 2020. Yet only five of those payments were allegedly paid. The other nineteen payments were allegedly either kept in the account or diverted into another account.

Dishonestly obtaining financial advantage

A previous article discussed the elements of the fraud offence under s 192E of the Crimes Act. Day has been accused of dishonestly obtaining a financial advantage (s 192E(1)(b)), which amounts of the offence of fraud. The court will need to prove the following elements in relation to this charge:

• A person
• Deceptively or dishonestly
• Obtains property belonging to another, or
• Obtains a financial advantage, or
• Causes any financial disadvantage to another

Obtaining a financial advantage refers to when a person is financially better off after committing the dishonest/deceptive act. This means the defendant would have caused a financial loss to another person or induced another to do something that causes a financial disadvantage. A “financial advantage” refers to some kind of profit or benefit a person receives as a result of their fraudulent actions.

The court also does not need to show that the financial advantage was permanent. It also includes circumstances where a person obtains a financial advantage which was obtained on a temporary basis.

Considerations

The court has held that general deterrence is in an important sentencing factor for fraud offences. This is because such crimes frequently involve a serious breach of trust and are usually only able to be committed because of the previous good character of the person who has been placed in the position of trust (R v El-Rashid (unrep, 7/4/95, NSWCCA)).

Additionally, case law has demonstrated that the court may consider other factors that are relevant in assessing the seriousness of a fraud offence. This can include:

• The amount of the money involved (R v Finnie [2002]), which can be relevant if offences are premeditated, committed on a number of separate occasions, or involve a degree of planning.
• The length of time the offences are committed (Luong v R [2014]), particularly if fraud was committed over a significant period of time since this may mitigate the weight that may be afforded to good character.
• The defendant’s motive for the crime (R v Mears [1991]), as a crime committed based on greed rather than need may cause the court to elevate the defendant’s culpability.

Defences

Good intentions

The offence of fraud requires that a person must have behaved deceptively or dishonestly. Consequently, if a person charged with the offence had the best of intentions, or made an honest and reasonable mistake, they cannot be found guilty of fraud.

The meaning of “dishonest” under the s 4B of the Crimes Act is judged according to facts. The court considers the defendant’s actions according to:

• The standards of ordinary people, and
• If the defendant knows themselves their behaviour is dishonest according to the standards of ordinary people.

Victim’s consent is not a defence

If a defendant has been accused of deceptively or dishonestly obtaining property belonging to another, they cannot claim the defence that the victim was willing to pay for the property. This is because the defendant’s actions can still be considered as deceptive or dishonest, regardless of the victim’s consent (s 192E(2) Crimes Act).

If you have been arrested or the police are looking to interview you regarding an investigation, Pannu Lawyers is able to advise you of your rights at every step of the criminal investigation & trial process. Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales such as Blacktown Local Court, Mt Druitt Local Court, Parramatta Local Court & District Court, Burwood Local Court, Downing Centre Local Court & District Court, and Penrith Local Court. If your matter is at Blacktown Court, we are conveniently located within a walking distance from the Blacktown Local Court. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.

This above information is intended as general information and is not intended to be relied on as legal advice. The part of this article is taken from an article published by the Sydney Morning Herald.