240(1)(a) - Obtaining Property By Deception

Question 1

Obtaining property by deception - Section and Penalty

Answer 1

CA61; S240(1)(a-d):
exceeds $1000 - 7 Years Imp
$500 to $1000 - 1 Year Imp
under $500 - 3 Months Imp

240(1A):
3 years imp

Question 2

240(1)(a) - Elements

Answer 2

1. By any deception and without claim of right
2. Obtains ownership or possession of, or control over
3. Any property, privilege, service, benefit, pecuniary advantage, or valuable consideration,
4. Directly or indirectly

Question 3

Claim of Right

Answer 3

CA61; S2

In relation to any act, means a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.

Question 4

Obtains

Answer 4

CA61; S217

Obtain, in relation to any person, means obtain or retain for himself or herself or for any other person

Question 5

Ownership; or possession of; or control over

Answer 5

Ownership, possession, or control may be directly or indirectly obtained.

Ownership: A legal right to property (title).

• *Possession of: R v Cox:**
• *Possession involves two elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as the mental element is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession.**

Control: Means to exercise authoritative or dominating influence or command over it.

Question 6

Property

Answer 6

S2 CA61

Property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and any thing in action, and any other right or interest.

Question 7

Privilege / Benefit

Answer 7

A special right or advantage.

Question 8

List some examples of a privilege or benefit

Answer 8

• Using another person’s gym membership card so that you can use the gym facilities.
• Access to medical services.
• The withdrawal of an assault charge.
• A reduction in sentence for an offence.

Question 9

Service

(R v Cara)

Answer 9

• *R v Cara:**
• *Service is limited to financial or economic value and excludes privileges or benefits.**

Question 10

Pecuniary advantage

Answer 10

• *Hayes v R:**
• *A pecuniary advantage is “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.”**

Question 11

List some examples of a pecuniary advantage

Answer 11

• Cash from stolen goods.
• Clothing or cash obtained by a credit or EFTPOS card.
• A discount (by using a student ID card).
• Avoiding or deferring payment of a debt.

Question 12

Valuable consideration

Answer 12

Hayes v R:
Anything capable of being valuable consideration, whether of a monetary kind or of any other kind; in short, money or money’s worth.

Question 13

List some examples of a valuable consideration

Answer 13

• Monetary payment in return for goods or services
• Goods given in return for services provided
• Issuing a false invoice to receive payment for goods never supplied

Question 14

Special interest lien

Answer 14

A right over another’s property to protect a debt charged on that property.

Question 15

Control

Answer 15

Means to exercise authoritative or dominating influence or command over it.

Of note

The prosecution does not need to prove that the accused was in actual possession of the property. It may be sufficient that the accused exercised control over the property through an agent.

It is insufficient that the dishonestly obtained property was found at the premises of which the defendant had control. It must be proved that the defendant did in fact exercise some control over the particular property.

Question 16

What definitions and/or case laws should be included in your discussion of the liability of:

• 240(1)(a) - Obtaining by deception or causing loss by deception

Answer 16

Definition of intent: 2 specific types of intent; the defendant must intend to obtain; and he or she must intend to obtain by the deception; R v Collister;

Definition of deception: CA61, S240(2); R v Morley; R v Mallet; S&B

Definition of WCOR: CA61, S2;

Definition of obtain: CA61, S2 - to obtain or retain for himself or herself or any other person;

Definition of ownership: a legal right to property (title);

Definition of possession: R v Cox - actual or potential physical custody or control;

Definition of control: to exercise authoritative or dominating influence of command over it.

Definition of property: CA61, S2;

Definition of privilege/benefit: a special right or advantage

Definition of service: R v Cara;

Definition of pecuniary advantage: Hayes v R;

Definition of valuable consideration: Hayes v R;

Definition of a person/victim: person - S2 CA61 as proven by CE or JN; victim - S4 VRA 2002;

Question 17

S240(1A) - legislation

Answer 17

1. Without reasonable excuse
2. Sells, transfers, or otherwise makes available
3. Any document or thing capable of being used to derive a pecuniary advantage knowing that
4. By deception and without claim of right
5. The document or thing was, or was caused to be, delivered over, executed, made, accepted, endorsed, or altered.