Study Notes Property Offences PDF

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Property Offences – Crimes Act 1900 (NSW) o o o

Property offences embrace an enormous volume of legislation and case law. The various Sections of the Crimes Act which deal with property type offences range from 94AA – 192A Crimes Act NSW 150 offences dealing with larceny (STEALING) and other property offences in Parts 4 – 4B. Division 4 of the Crimes Act NSW deals with Housebreaking type offences Break & Enter type offences; Larceny; Receiving; Stealing of Motor Vehicles and Damage to property

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Three Types of offences with a degree of seriousness: 1. 2.

3.

The basic offence Aggravated offence o Aggravation occurs when the alleged offender is involved in one or more of the following – armed with an offensive weapon or instrument, is in the company of another, uses corporal violence on any person, intentionally or recklessly inflicts actual bodily harm, deprives a person of their liberty or knows that there are persons in the place where the offence is committed. Special aggravated offence o Occurs when the alleged offender wounds or intentionally or recklessly inflicts grievous bodily harm on any person and/or is armed with a dangerous weapon

Section 109: Creates the offence of “breaking out” of a dwelling house and states: (1) Whosoever enters the dwelling-house of another, with intent to commit a serious indictable offence therein, or, being in such dwelling-house commits any serious indictable offence therein, and in either case breaks out of the said dwelling-house shall be liable to imprisonment for fourteen years. (2) Aggravated offence: A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. Max Penalty: 20 years imprisonment. (3) Specially aggravated offence: A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. Max Penalty: 25 years imprisonment. Larceny type offences – Sections 116 – 154D Crimes Act NSW CASE: Ilich v R (1987) 162 CLR 110, Wilson & Dawson JJ at 123 “At common law, larceny is committed by a person who, without the consent of the owner à fraudulently and without a claim of right made in good faith à takes and carries away anything capable of being stolen with intent at the time of such taking, permanently to deprive the owner thereof.” The physical elements: (i) the defendant took and carried away; (ii) property capable of being stolen; (iii) from the possession of another person (does not have to be the owner); and (iv) without the consent of the person in possession. The mental elements: (v) with the intention of depriving the possessor permanently of such property; (vi) dishonestly; and (vii) without a claim of right

Burden of proof • In order to establish the offence of larceny the prosecution must prove all elements of the offence beyond a reasonable doubt ACTUS REUS The prosecution must prove, beyond a reasonable doubt that the defendant: • Took and carried away; • Property capable of being stolen; • Which belonged to another; and • Without the consent of the owner MENS REA The prosecution must prove, beyond a reasonable doubt that the defendant, at the time of taking the property: (Illich v R (1987)) • Intended to permanently deprive the owner of the property • Did not have a claim of right made in good faith; and • There is an element of fraud NOTE: RE Fungibles: objects that are interchangeable (eggs, money, food) – MENS REA: o In relation to the mens rea, if the defendant borrows $20 from the victim, with the intention of repaying the victim later in the week the equivalent of the $20 in different notes à the law would characterise this as an intention to permanently deprive the victim of the specific $20 note Taking and carrying away CASE: o R v Lapier (1784) 168 ER 263: attempting to steal an earring and moving it to the point where the earing became entangled in the owner’s hair, was held to be sufficient asportation Property capable of being stolen, CASE: Croton v R (1967) o Appellant and mistress opened joint bank account in join names à with authority in each to operate account o Appellant withdrew contents of account and deposited amounts in own account in another bank without knowledge or authority of mistress o Appellant convicted of larceny o Held: Money in a bank account technically doesn’t exist à so larceny cannot happen when money is moved illegally from an account o Not guilty of larceny as: o Transfer of money to appellant by bank was voluntary o Money not taken out of possession of mistress o Property in money passed on withdrawal to appellant solely as result on arrangements to operate account o Appellant not Bailee for joint owners not did appellant commit larceny as Bailee, as mistress had not passed possession of money to appellant o The prosecution must establish that the property was capable of being stolen o

This results in serious requirements in relation to the property stolen

Intention to permanently deprive • Larceny is not committed unless the defendant, at the time of the taking, intends to deprive the owner of the property permanently CASE: (R v Foster (1967)) Section 117: Creates the offence of Larceny and states: Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years.

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At common law, larceny is committed when a person takes and carries away, with a felonious intent, goods which are the subject of larceny at common law, without the consent of the owner, and without claim of right made in good faith and with the intention of permanently depriving the owner of such goods.

Receiving Creates the offence of Receiving/disposing of stolen goods and states: Whosoever receives, or disposes of, or attempts to dispose of, any property, the stealing whereof amounts to a serious indictable offence, knowing the same to have been stolen, shall be guilty of a serious indictable offence, and may be indicted, either as an accessory after the fact, or for a substantive offence, and in the latter case whether the principal offender has been previously tried or not, or is amenable to justice or not, and in either case is liable: (a) if the property is a motor vehicle or a motor vehicle part, or a vessel or a vessel part, to imprisonment for 12 years, or (b) in the case of any other property, to imprisonment for 10 years.

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