Embezzlement by clerk or servant offence, penalties, and defences
Embezzlement is where a person misappropriates funds or property that have been entrusted to them by their employer. If you have been charged with this offence, you could be facing up to 10 years imprisonment if found guilty.
Embezzlement by clerks or servants is an offence that Australian Criminal Law Group has experience defending in court. Our criminal law team fight for our clients to get them the best possible outcomes for their case and regularly have charges dropped, or where our client chooses to plead guilty, getting them no convictions.
There are several factors that have to be proven to the court in order to be found guilty of this offence. This includes that you were a clerk or servant at the time, that you took possession of the property and that you did so dishonestly. If any one of those factors cannot be proven beyond a reasonable doubt, you will not be found guilty of embezzlement.
Our criminal lawyers will be able to build the best defence and advise you of the best course of action, should you be charged with embezzlement. If you are facing charges of this offence, we recommend that you get in touch with us a.s.a.p. Phone us on 02 8815 8167 or email us at email@example.com.
What is embezzlement by a clerk or servant?
Embezzlement by clerk or servant is dealt with under section 157 of the Crimes Act 1900 which states:
“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 ten years.”
In simple words, embezzlement is the misappropriation of funds or property that have been entrusted to a ‘clerk’ or ‘servant’ by an employer. A ‘clerk’ or ‘servant’ is a person that is “bound to obey the orders of their employer” or, essentially, an employee.
For example, if an employer gives control of an account intended for business purposes but the funds in the account are used by the employee for personal or unauthorised purposes, this is considered embezzlement.
The maximum penalty for embezzlement is 10 years imprisonment if found guilty of this offence.
What’s the difference between Larceny and Embezzlement?
The main difference is based on who had possession of the property when it was taken. If the property was taken when in possession of the employer, then the matter will be treated as Larceny. Whereas, if the property was in the possession of the employee/offender, then it will be treated as embezzlement.
There are several factors that have to be proven to be found guilty of embezzlement. They include:
- There must be a theft of property. The property also has to be something that is tangible or that has a value. Stealing a cheque. It does not include information.
- The property taken must belong to the offender’s ‘employer’. This could be a single person, a company, or a corporation.
- The property would be deemed to be ‘stolen’ if it was delivered to, or received, or taken into possession for, or in the name, or on the account of the employer and the master or employer did not receive that property.
Penalties for embezzlement
The penalties for embezzlement vary, depending on which court the case is heard in. If the value of the property embezzled doesn’t exceed $5,000, embezzlement is treated as a table 1 offence meaning it will be dealt with in the Local Court. There, the maximum sentence is two years and can include fines of varying amounts, depending on the value embezzled.
However, if the value embezzled is over $5,000, the DPP and defendant can elect to have it heard in the District Court, where harsher penalties can be imposed.
Following are the maximum penalties based on the value of the property embezzled, if the matter is heard in the Local Court:
- Value exceeding $5,000: Two years imprisonment and/or 100 penalty units ($11,000 fine).
- Value not exceeding $5000: Two years imprisonment and/or 50 penalty units ($5,500 fine).
- Value not exceeding $2,000: Two years imprisonment and/or 20 penalty units ($2,200 fine).
There are also several alternative penalties available that the court might find more appropriate and that are normally always more favourable than imprisonment. They include:
- Intensive Correction Orders (ICO),
- Conditional Release Orders (CRO),
- Community Corrections Orders (CCO),
- Home detention,
- Good behaviour bonds, and
- No Convictions can also be given.
Alternative penalties are dependent on several factors concerning the defendant and the case. This can include such things as your criminal history, the seriousness of the offence committed and the personal circumstances of the defendant. Additionally, where more favourable penalties are imposed, the courts may wish to include conditions that, if breached, could see the more favourable penalties revoked in place for harsher ones.
Therefore, it is highly recommended to get an experienced defence lawyer on your case to ensure the best outcomes for you.
Pleading guilty of embezzlement
Pleading guilty to embezzlement charges could be in your best interest to do so if you are guilty. By pleading guilty, the courts are more likely to impose a lenient sentence. That’s because it shows that you have accepted responsibility for the crime and that you are truly remorseful.
Even so, if you are guilty of embezzlement and you decide to enter a guilty plea, it is important to speak with an experienced criminal lawyer. A good criminal lawyer can help you navigate the best course of action to get the best outcome for your case. Your criminal lawyer can prepare persuasive applications for lenient sentencing and even get a non-conviction in some cases. This means you will not have a criminal record against your name.
Australian Criminal Law Group is experienced at getting the best possible outcome for all fraud-based crimes. We regularly get our clients’ lenient sentences and no convictions. Get in touch for your first free consult and let us know about your case. Call us on 02 8815 8167.
Pleading not guilty of embezzlement
If you wish to plead not guilty of embezzlement, then the prosecution will have to prove beyond reasonable doubt that you did commit the offence, as per the Crimes Act 1900. That means, in order to achieve a guilty verdict, they will have to prove that the following criteria were met;
- The offender is a clerk or servant of the proper owner of the property at the time the offence was committed.
- That the offender received, had delivered to or took into their possession the property
- The property was for, in the name of, or on account of the employer, and
- The property was fraudulently obtained.
If the prosecution cannot prove any of the above beyond reasonable doubt, then you will not be found guilty of embezzlement.
Australian Criminal Law Group know how to beat embezzlement charges and regularly get our clients “not guilty” verdicts. Discuss the details of your case in a first free consult with one of our lawyers today.
Our lawyers can also identify and raise all possible defences, for example:
- Claim of Right: Where you honestly and reasonably believed that you had a legal claim to the property.
- Duress: Where you were threatened or coerced into embezzling the money or property by another person.
Why work with Australian Criminal Law Group
Australian Criminal Law Group is home to experienced criminal lawyers with a reputation for getting their clients the best results every time. We regularly beat charges of embezzlement or, where our clients chose to plead guilty, we get them the best possible outcomes including reduced sentences and no convictions.
Get in touch with Australian Criminal Law Group for a first free consultation to tell us about your case. Call us on 02 8815 8167 or email us here.
Sources: Crimes Act 1900 No 40, Section 157. Current Version for 1 January 2022 to date (accessed 24 February 2022). https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040
This information is intended as a general guide to law only. It should not be relied on as legal advice, and it is recommended that you speak with a qualified lawyer about your situation.
Australian Criminal Law Group and its suppliers make every reasonable effort to ensure the accuracy and validity of the information provided on its web pages. At the time of updating, this information was correct, however, given the laws in NSW and Australia are continually changing, Australian Criminal Law Group makes no warranties or representations as to its accuracy.