Identity Theft Criminal Defense Lawyers
Identity Theft offences (identity fraud or identity crime) are serious offences in NSW.
Identity Fraud is one of the fastest-growing crimes and causes some of the most significant financial losses to the Australian Government and individuals. As such, the Australian Government invests significant funding in special tasks forces involving the AFP, and other government departments and private sector organisations, to deal with identity fraud and charge those they suspect of being involved in identity theft and identity crime.
For those who are found guilty of Identity Fraud or Identity Theft, they could face harsh penalties, the harshest being a maximum of 10 years imprisonment for the offence of Identity Theft.
As such, if you have been charged with Identity Crime, we highly recommend engaging an expert criminal defence lawyer. Having the right defence team on your case could be the difference that helps you avoid imprisonment.
What is Identity Fraud?
The term ‘Identity Fraud’ is also referred to as Identity Crime. Identity crime is simply a generic term to describe activities/offences involving stolen identities.
Identity Fraud offences occur when a person steals or assumes an identity, fabricates an identity or manipulates identity by deception in order to gain benefit.
A set of standard definitions for Identity Crime was made by the Australian Transaction Reports and Analysis Centre’s proof of identity steering committee and includes
- identity encompasses the identity of a natural (living or deceased) and the identity of bodies corporate
- identity fabrication is the creation of a fictitious identity
- identity manipulation is the alteration of one’s own identity
- Identity theft describes the theft or assumption of a pre-existing identity (or a significant part thereof), with or without consent and whether, in the case of an individual, the person is living or deceased.
- Identity Crime was included and is to be used as a generic term to describe activities/offences in which a perpetrator uses a fabricated identity; a manipulated identity; or a stolen/assumed identity to facilitate the commission of a crime(s).
Identity Theft Laws NSW Australia
Until as recently as 2010, Identity theft was dealt with under other offences in NSW, including fraud offences, larceny, or robbery. Identity theft was not a crime. However, with the rise in identity theft and the financial toll it has on the Australian government and individuals, new offences have since been enacted. These offences prohibit the possession of personal information with the intent to commit further crimes.
The Crimes Amendment (Fraud, Identity and Forgery Offences) Bill 2009 was passed in late 2009 which created three new identity theft offences. These took effect the following year and are dealt with in section 192I of the Crimes Act 1900. They are outlined as follows;
The Crimes Act 1900 includes 3 Identity Offences;
- Dealing with identification information.
- Possession of identification information
- Possession of equipment etc to make identification documents or things.
What is Identification Information?
For the following offences, the definition of identification information is;
identification information means information relating to a person (whether living or dead, real or fictitious, or an individual or body corporate) that is capable of being used to identify a person. This includes name, address, date of birth, marital status, identification document numbers, digital signatures, ABNs, a relative’s information, biometric data, financial details, voice print, and/or passwords. This information is easy to come by and often included in publicly available information on the internet.
What is the offence of Dealing with identification information?
Dealing with identification information is dealt with in section 192J of the Crimes Act 1900. The act makes it an offence for a person to deal with another person’s identification information with the intention of committing an offence.
Specifically, the legislation states
“A person who deals in identification information with the intention of committing, or of facilitating the commission of, an indictable offence is guilty of an offence.”
The legislation defines the word “deal” in relation to “dealing with” the identification information.
“deal in identification information includes make, supply or use any such information.”
This definition is very broad, meaning it could be said any interaction had with identification information was “dealing with” it.
For an offence to take place, there must be intent to commit a crime. That is, the offender must deal with identification information with the intent to commit or facilitate the commission of an indictable offence. This means that the offender does not need to carry out the indictable offence to be found guilty of this crime. Rather, simply taking the identifying information of another individual is enough to be found guilty, if the prosecution can prove there was intent.
You could also be found guilty if you facilitated the commission of an indictable offence through another person. You do not need to be the person that carried out the crime.
The maximum penalty for this offence is imprisonment for 10 years.
Possession of identification information
Possession of identification information is dealt with in section 192K of the Crimes Act 1900. It states that.
A person who possesses identification information with the intention of committing, or of facilitating the commission of, an indictable offence is guilty of this offence.
The Crimes Act includes a standard definition for identification information – information relating to a person that is capable of being used to identify that person. Examples of identification information include a person’s name and address, date of birth, marital status, identification document numbers, digital signatures, ABNs, relatives information, biometric data, financial details, voice print, and/or passwords. This information is easy to come by and often included in publicly available information on the internet.
This offence also covers companies and body corporates in addition to individuals, whether dead, alive, real or fictitious. As such, you could be charged with Possession of identification information with intent if you produce information or documents relating a company and/or purporting to have authority to act for a company. You must also intend to commit an indictable offence to be found guilty of this crime.
The legislation states that you can still be charged with this offence even if it is impossible to commit the indictable offence. You can also be found guilty if you facilitate the commission of an indictable offence through another person. You do not need to be the person that carried out the crime.
Maximum penalty—Imprisonment for 7 years.
Possession of equipment to make identification documents or things
Possession of equipment to make identification documents or things is dealt with in section 192L of the Crimes Act 1900. The act states that.
A person who—
(a) possesses any equipment, material or other thing that is capable of being used to make a document or other thing containing identification information, and
(b) intends that the document or other thing made will be used to commit, or to facilitate the commission of, an indictable offence,
is guilty of an offence.
This definition is also very broad. It includes possession of any “equipment, material or other thing” that can make identification material. That means you can be found guilty of this offence if you possess anything that is used alone or with other things to create identification material (including the below examples), even if you only have one part of the necessary equipment, material, or other thing to do so. The key is that there was “intent” to commit a crime.
Examples of identification making equipment include the following.
- Printers or materials (i.e. blank cards) to make fake drivers’ licences.
- Passport making equipment
- Passport stamps
- Digital templates and identification data
- Laminating machines
While some of these items could be easily argued to be in an offender’s possession for unlawful purposes, many are commonly owned by ordinary people for every day, lawful purposes.
The maximum penalty for Possession of Identification information offences is imprisonment for 3 years. However, there are other sentencing options available to the court. These are included below with a complete list of possible penalties.
Examples of Identity Theft
- Theft of mail articles
- Theft of wallets, bags, and purses
- Skimming of credit and debit cards via ATMs or EFTPOS terminals
- Internet scams including phishing emails or spoofing sites designed to replicate banking and payment sites
- Remote access scams giving access to a computer
- Malicious computer programs such as malware or spyware
- Telemarketing scams
- Hacking of websites or business servers containing personal information databases
- Fake online social media profiles
Examples of Identity Crime / Identity Fraud
Using another’s identity and identifying information to
- apply for a credit card in someone else’s name
- open a bank or building society in someone else’s name
- apply for other financial services in someone else’s name
- run up debts (e.g. use credit/debit card details to make a purchase) or obtain a loan in someone else’s name
- apply for any benefits in another’s name (e.g. housing benefit, new tax credits, income support, job seeker’s allowance, child benefit)
- apply for a driving licence under someone else’s name
- register a vehicle under someone else’s name
- apply for a job/employment in someone else’s name
- apply for a passport in someone else’s name
- apply for a mobile phone contract in someone else’s name.
Penalties for Identity Theft NSW
Identity theft is a serious criminal offence in NSW and so the courts take these matters very seriously. As detailed above, this includes harsh maximum penalties for those found guilty of identity crime.
The maximum penalty for identity crimes is 10 years imprisonment. This is for the most serious identity fraud crime offence – Dealing with identification information. While the penalty for Possession of equipment to make identification documents or things is a maximum of 3 years. The penalty for Possess identification is 7 years imprisonment.
There are also several other penalties available to the court which are preferable penalty options. These include
- Intensive Corrections Order (ICO)
- Community Service Order (CSO)
- Community Corrections Orders (CCO)
- Section 10 – No Convictions
- Conditional Release Order (CRO)
Pleading Guilty to Identity Theft or Identity Fraud Offences
If you are guilty and it can be proven by the prosecution, entering a guilty plea is often a good idea. By doing so, you are showing the court that you are remorseful for your actions. This can result in more lenient sentences being imposed.
If you decide to plead guilty, it is recommended that you seek legal advice first.
Australian Criminal Law Group consistently gets the results our clients want when they plead guilty. That outcome is different for everyone. In many cases, we are even able to help clients avoid having a conviction recorded with a section 10 no conviction. For others, we keep them out of prison and/or get more lenient sentences including shorter sentences of imprisonment.
For guilty pleas, we also always recommend good character references be prepared in advance. Character references can help demonstrate your good character, meaning the courts are more likely to impose a more lenient sentence.
Pleading Not Guilty to Identity Theft or Identity Fraud Offences
You will be found not guilty of Identity Fraud Offences if the prosecution could not prove, beyond a reasonable doubt, that you committed an identity crime as per Section 192J of the Crimes Act 1900.
For those that want to enter a not guilty plea, the Australian Criminal Law Group is your best defence against criminal charges. We know how to beat charges of identity fraud and have extensive experience representing clients charged with various identity crimes.
Possible Defences for Identity Theft and Identity Fraud include;
Identity Crime including dealing with identification information, possession of identification information and possession of equipment to make identification information, involves the intent to commit an indictable offence. This is true even if it is impossible to commit the indictable offence. It may be difficult for the prosecution to prove the defendant intended to use the identification information for fraud or other indictable offences.
A possible defence is that it is your own identification information you were dealing with. Section 192M(1) of the Crimes Act, states that offences do not apply when you are dealing with your own identifying information.
Duress, where you were threatened and coerced to commit the offence, is also a possible defence. As is Necessity. This is where you had to commit the offence out of necessity to protect yourself from external threats from either natural or human forces.
Best Identity Theft lawyers are at the Australian Criminal Law Group
We have the best criminal lawyers for identity fraud crimes at the Australian Criminal Law Group. We fight to beat charges and consistently get the best results possible for our clients.
If you need representation or criminal law advice call our free 24/7 criminal law hotline on 02 8815 8167 or send us a website enquiry.
Sources: Crimes Act 1900 No 40, Section 192. Current Version for 1 January 2022 to date (accessed 29 March 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.