Attempts to commit an offence

Question 1

When are you unable to charge someone with an attempt?

Answer 1

1. Where the offence criminally depends on recklessness or negligence e.g: manslaughter
2. An attempt to commit an offence is included within the definition of that offence e.g: Assault
3. The offence requires an act to be completed in order for the offence to exist e.g: demanding with menace

Question 2

Penalties of attempts - Section

Answer 2

Crimes Act 1961 Section 311(1)

Unless specified in the enactment -

Life imprisonment offence - 10 years
In any other case - Not more than half the penalty e.g Attempted burglary = 5 years

Question 3

R v Harpur

Answer 3

The count may have regard to conduct viewed cumulatively up to the point where the conduct in question stops. The defendant’s conduct may be considered in it entirety. Considering how much remains to be done is always relevant, though not determinative.

Question 4

Three elements of an attempt:

Case law has established the following three conditions that must apply for an attempt conviction to succeed. What are these three conditions?

S/A

Answer 4

1. Intent (mens rea) - To commit an offence
2. Act (acts reps) - That they did, or omitted to do, something to achieve that end
3. Proximity - That their act or omission was sufficiently close

Note:
It must be legally possible to commit the offence, in the circumstances. A person cannot be convicted of an offence that is physically impossible to commit.

Question 5

Attempts - Act/Section/ Definition (1)(2) and (3)

Answer 5

Crimes Act 1961
Section 72(1)

Everyone who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

Crimes Act 1961
Section 72(2)

The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.

Crimes Act 1961
Section 72(3)

An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.

Question 6

R v Ring

Answer 6

In this case the offender’s intent was to steal property by putting his hand into the pocket of the victim. Unbeknown to the offender the pocket was empty. Despite this he was able to be convicted of attempted theft, because the intent to steal whatever property might have been discovered inside the pocket was present in his mind and demonstrated by his actions. The remaining elements were also satisfied.

Question 7

R v Donnelly

Answer 7

Where stolen property has been returned to the owner or legal title to any such property has been acquired by any person, it is not an offence to subsequently receive it, even though the receiver may know that the property had previously been stolen or dishonestly obtained.

Question 8

Who decides a question of fact?

Who decides whether the defendant has left the stage of preparation?

Answer 8

A question of fact; is a question that the jury decides.

The judge must decide whether the defendant has left the preparation.

Question 9

Higgins v Police

Police v Jay

Answer 9

Higgins v Police
Where plants being cultivated as cannabis are not in fact cannabis it is physically, not legally, impossible to cultivate such prohibited plants. Accordingly, it is possible to commit the offence of attempting to cultivate cannabis.

Police v Jay
A man bought hedge clippings believing they were cannabis.

Question 10

Ensuring the act is sufficiently proximately requires:

Answer 10

That the act is sufficiently proximate to the full offence. The accused must have started to commit the full offence and have gone beyond the phase of mere preparation.