Australia: The offence of dishonestly obtaining a benefit by deception in NSW

Australian singer Guy Sebastian's former manager has been  charged with fraud, after allegedly dishonestly obtaining $1.15 million that should have been paid to the singer.

Titus Day was recently arrested and charged with 61 counts of dishonestly obtaining financial advantage by deception.

The pair ended their business relationship in 2017, and over the past few years both have accused each other of owing money. They are currently suing each other in the Federal Court, with lawyers for Guy Sebastian claiming $200,000 in royalties from the sale of his work. Mr Day claims that he is owed $800,000 in unpaid management fees.

The latest incident in the long-running legal battle has been the arrest of Mr Day. Police allege that he defrauded Guy Sebastian over a period of seven years.

The court heard that 24 payments were made into a trust account for Guy Sebastian by Premier Musik in the United States. This account was managed by Mr Day who ran talent agency Six Degrees Management, which no longer exists. Police allege only five payments were made to Guy Sebastian and that he is owed the remainder of the money, amounting to $1.15 million.

While Police describe the case as 'relatively uncomplicated' despite the enormity of the sum of money involved, they do have concerns there could be other victims, and are currently investigating Mr Day over several other high-profile celebrities' payment arrangements and whether any money was "potentially siphoned into other accounts".

Dishonestly obtaining financial advantage by deception, is also known as fraud and is contained in section  192E of the Crimes Act 1900 (NSW) which states:

A person who, by any deception, dishonestly:

• Obtains property belonging to another, or
• Obtains any financial advantage or causes any financial disadvantage,

is guilty of the offence of fraud.

In order for you to be convicted of fraud, the prosecution must prove that you:

• Obtained a financial advantage or caused a financial disadvantage; and
• That the financial advantage or disadvantage was obtained as a result of a deception or act of dishonesty.

The law has a definition for obtaining a financial advantage that is more than just its natural meaning.

It includes obtaining a financial advantage for yourself, or inducing another person to do something that results in you obtaining a financial advantage. And the financial advantage does not have to be permanent, and can be temporarily obtained.

The definition for causing a financial disadvantage is explained as causing a financial loss to another person, or when you induce another to do something that causes a financial disadvantage.

The prosecution must prove that there was an element of deception or dishonesty in the act.

Section 4B of the Crimes Act makes clear that whether the conduct amounts to 'dishonesty  is to be determined by the trier of fact – whether the magistrate in the Local Court or the jury or judge sitting alone in a higher court – according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.

Section 192B of the Act defines 'deception' as any intentional or reckless  deception, by words or other conduct, as to fact or as to law, including:

(a)  a deception as to the intentions of the person using the deception or any other person, or

(b)  conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make.

In addition to having to prove all of the elements of fraud, the prosecution must also disprove beyond reasonable doubt any legal defences that are validly raised.

These defences include duress and necessity.

The maximum penalty is imprisonment for 10 years where the case is finalised in the District Court, or 2 years where it is dealt with in the Local Court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.