Possession of Equipment (etc) for Making False Documents

In NSW, making or possessing equipment for making false documents is a serious offence that carries a maximum penalty of imprisonment for ten (10) years. In NSW, a court can impose any of the following penalties for this charge:-

• Prison Sentence
• Home Detention
• Intensive Corrections Order (ICO)
• Suspended Sentence
• Community Service Order (CSO)
• Community Corrections Orders (CCO)
• Good Behaviour Bond
• Fine
• Section 10A
• Conditional Release Order (CRO)
• Section 10

The Offence of Making or Possession of Equipment for Making False Documents:

Section 256(1) of the Crimes Act 1900 states: “a person who makes, or has in his or her possession, any equipment, material or other thing designed or adapted for the making of a false document: (a) knowing that it is so designed or adapted, and (b) with the intention that the person or another person will use the equipment, material or other thing to commit the offence of forgery is guilty of an offence.”

The maximum penalty for an offence under subsection (1) is ten (10) years imprisonment.

In addition, section 256, provides for two (2) lesser, alternate offences. If the Police can provide either (a) or (b) as set out above, but not both, you could still be convicted of an offence under subsections (2) and (3) respectively. the maximum penalties under either of those sections is three (3) years imprisonment.

What Actions Might Constitute Making or Possessing Equipment for Making False Documents?

What constitutes a ‘false’ document is defined in section 250(1) of the Act. That section provides a list of circumstances in which alterations to or the creation of the document would make the document a false one. In essence, a document is false if the document, or any part of it, purports:

• To be made by a person or with the authority of a person who did not make or authorise the document in that form or on those terms; or
• To have been altered by a person or with the authority of a person who did not alter or authorise the alteration;
• To have been made or altered on a date or a place which it was not made or altered; or
• To have been made or altered by or with the authority of a person who did not exist.

Section 256(4) states that the Court can find that the ‘equipment, material or other thing’ in your possession was designed or adapted for the purpose of making a false document, even if they find that it was also designed and adapted for another purpose. It does not have to be designed or adapted solely for the purpose of making a false document.

Furthermore, to convict you of an offence under this section, the Police must prove that you intended to commit the offence of Forgery under section 253 of the Crimes Act 1900.

You can possess something even if it is not physically with you. Legally, you possess something if you have knowingly left it with another person, or at a location (whether or not you occupy that place) for your use or the use of another person.

Common examples of offences charged under this section are:-

• Chen v R [2015] NSWCCA 277 dealt with what the court described as a “sophisticated identification manufacturing operation”. Police found equipment including card printing machines, blank non-embossed cards and a magnetic card reader/encoder.
• R v Bin Li and Kun Wang [2013] NSWDC 211 dealt with an individual who possessed equipment for manufacturing credit cards, drivers licences and other identification material.

What the Police Must Prove:

To convict you of making or possessing equipment for making false document, an offence under section 256(1) of Crimes Act, the Police must prove beyond reasonable doubt that you:-

• Had in your possession any equipment, material or thing that was adapted for the making of a false document;
• You possessed that equipment, material or other thing knowing that it was so designed or adapted; and
• You did so with the intention that you or another person would use that equipment, material or other thing to commit the offence of forgery.

To convict you of an offence under section 256(2), the Police must prove beyond reasonable doubt that you:-

• Had in your possession any equipment, material or thing that was adapted for the making of a false document; and
• You possessed that equipment, material or other thing knowing that it was so designed or adapted.

To convict you of an offence under section 256(3), the Police must prove beyond reasonable doubt, that you:-

• Had in your possession any equipment, material or thing that was adapted for the making of a false document; and
• You did so with the intention that you or another person would use that equipment, material or other thing to commit the offence of forgery.

Possible Defences to Making or Possessing Equipment for Making False Documents:

Section 256(6) states that it is not an offence to attempt to commit an offence against this section.

Which Court Will Hear Your Matter?

An offence under section 256(1) is a Table 1 offence. That means that your matter will likely be dealt with in the Local Court. However, either the Prosecution or the Defendant can elect to have the matter dealt with in the District Court.

An offence under sections 256(2) and (3) is a Table 2 offence. That means that your matter will be dealt with in the Local Court unless the Prosecution elects to have the matter dealt with in the District Court. If they do so, this will give rise to harsher penalties.

Types of Penalties:

Jail: This is the most serious penalty and involves full time detention in a correctional facility. Read more.

Home Detention: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.

Intensive Corrections Order (ICO): This option has replaced periodic detention. the court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Suspended Sentence: As a result of amended legislation this penalty was repealed on 24 September 2018. This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. a suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Community Service Order (CSO): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Good Behaviour Bond: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This is an order of the court that requires you to be of good behaviour for a specified period of time. the court will impose conditions that you will have to obey during the term of the good behaviour bond. the maximum duration of a good behaviour bond is five years. Read more.

Community Corrections Orders (CCO): a CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.

Fines: When deciding the amount of a fine the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10A: a section 10A is a conviction, with no other penalty attached to it. Read more.

Conditional Release Order (CRO): a CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. Read more.

Section 10 avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.