Fraud and Theft Under $5,000
What’s the legal definition of fraud?
The definition of fraud, whether fraud under/over $5,000, is the use of intentional deceit, falsehood, or other fraudulent means to deprive or risk depriving someone of something valuable that they own.
For an accused to be guilty of fraud, the prosecutor must prove beyond reasonable doubt that the accused used:
Intentional – The accused must have intended to commit fraud be guilty of it. However, an accused “intended” to commit fraud if they just knew there was a risk they were committing fraud;
…deceit, falsehood, or other fraudulent means – The accused must have deceived or lied to the victim. The words “other fraudulent means” are somewhat redundant. Those words simply mean “a dishonest act”;
…to deprive or risk depriving someone – The accused’s deception, lie, or dishonest act must have caused the victim to be deprived or risk being deprived of something valuable the victim owned;
…of something – The “thing” didn’t have to be a physical thing. It could have been information, for example;
…valuable – The “thing” must have had value;
…that they own – The victim must have owned whatever valuable thing they were deprived of, or had risked being deprived of.
What’s the legal definition of theft?
The definition of theft, whether theft under/over $5,000, is when someone fraudulently and without colour of right takes or converts anything with intent to deprive the owner of it temporarily or absolutely.
For an accused to be guilty of theft, the prosecutor must prove beyond reasonable doubt that they:
Fraudulently – This just means “dishonestly”. This includes that the accused knew they didn’t have a right to take or convert whatever thing they’ve been accused of stealing;
…and without colour of right – A “colour of right” defence is one where someone reasonably believed they had a right to do something they didn’t actually have a right to do. This just means the accused can’t rely on a colour of right defence to be guilty of theft. In other words, the accused must have known they didn’t have a right to take or convert whatever the victim has accused them of stealing;
…takes or converts – The difference between “taking” and “converting” is that converting involves changing the character of the thing in some way. For example, someone converts fabric if they make clothes out of it;
…anything – A person can steal any thing. A “thing” doesn’t have to be a physical thing. A person can steal data, for example;
…with intent to deprive the owner of it – The accused isn’t guilty of theft if they never intended to deprive the owner of the thing they took or converted. The law says a person “intended” to commit theft if they just knew they risked depriving the owner of the thing they took or converted;
…temporarily or absolutely – The accused didn’t need to deprive someone of something forever to be guilty of theft. If the accused asserts they were planning on giving the thing back to whomever they took it from, that isn’t a legal defence to theft.
What’s the difference between fraud and theft?
In many instances, prosecutors will charge an accused with both fraud and theft. The main difference between the two offences, however, is the deceit. If someone steals something from a store, that’s theft. If they switch the price tag on an item in a store to buy it for less money, that’s fraud. But if they falsify an invoice to transfer money from a company account to their own account, it’s both.
The law treats fraud as a slightly more serious crime than theft, all else being equal. Thefts are usually more opportunistic and impulsive. By contrast, frauds are usually more planned and deliberate. In terms of sentencing, the maximum sentence for fraud over $5,000 (14 years) is higher than for theft over $5,000 (10 years).
What are some defences to fraud or theft?
Defences to fraud or theft involve negating one of their elements. In other words, showing that the prosecutor can’t prove one of the ingredients they need to prove the offence. For example, the prosecutor might not be able to prove that the accused had the intention to steal.
A specific defence to either fraud or theft is colour of right. If the accused can show that they had a reasonable belief that they were allowed to do what the complainant (i.e. alleged victim) says they weren’t allowed to do, then they’re not guilty. That’s because, again, the accused didn’t have the intent to steal or defraud.
You can find some of the firm’s case results for fraud and theft under $5,000 HERE.