Attempt Flashcards
Requirements for attempt
- Intention
- Was the act immediately or proximately connected or was it merely preparatory
- Was the crime being attempted impossible
case of man signalled to slow down but sped up at the cop
Mohan: Intent (mens rea) is an essential ingredient of the offence of attempt. Where the charge is attempting by dangerous driving to cause GHB, D needs to intend to drive dangerously and cause GBH
Supreme Court on offences where an additional element is needed for full offence
R v L
In NZ now our supreme court says when you have one of these provisions that requires some additional fact or circumstance then you can use the same standard and elements for the full offence and the attempt: MR for full offence and attempt are the same for these offences
assault with intent to cause sexual violation (applying earlier case)
Ah-Chong
Endorses Khan and R v L in SC
after being suspected to be involved in sexual exploitation of children the police set up a fake situation and arrested him when he showed up
Harpur
AR and MR must be looked at together. “a more remote actus reus will be accepted if the intent is clear”
Step 2: Was the act immediately or proximately connected or was it merely preparatory
Acts of preparation are too remote to constitute an offence (72(2)) must be immediately and proximately connected (72(3))
D found in garden metres from girls sleep out wearing all black, had been watching for a while
Johnston
Propensity evidence was enough to prove strong intention – therefore there was an attempt. Even if you change your mind and leave the attempt, if you were proximate enough for it to be an attempt then it will still be an attempt.
D was slumped at wheel of van, engine racing, headlights on, wipers on drunk
Taia
If the evidence on proximate connected could go either way, pick the way which is most favourable to the defendant.
Main case on impossibility and falling short of attempt (D went to receive stolen goods which were no longer there as the cops had already seized them)
Donnelly: Ways a person might set out to commit a crime but in the event fall short
- D changes mind before committing a proximate act
○ Not liable - no proximity/merely preparatory - D changes mind after committing a proximate act
○ Liable - already proximate - D is stopped by an outside agency (cop/security)
○ Factually impossible - still attempt - D fails through own ineptitude, inefficiency, insufficient means
○ Factually impossible - still attempt - D finds it impossible to commit the offence, no matter what means are adopted (impossibility of “ends”)
○ Factually impossible - still attempt
○ Impossibility of ends - would be thief goes to steal a ring but it is not there - Contrary to D’s belief, the conduct does not amount to an offence – legal impossibility
Legal impossibility
gf sent texts to bf to try help him avoid the police, he was already arrested
Nichols
Factual impossibility so still attempt
D contacted acquaintance and asked to be put in touch with someone who could kill his rents, was a cop
Barlow
Factual impossibility so still attempt, also example of proximate actions
attempted to receive weed but it was grass clipping
Jay
Factual impossibility so still attempt. Similar to trying to steal a ring off someone and it isn’t there
Sentencing
Penalties for attempts are not, generally, as high as for a full offence. If the offence has a full sentence of life then the attempt will be a maximum of 10 years (s 311) if there is no sentence in the specific section.
