Deception/Robbery and property offences

Question 1

What are the proofs of larcency?

Answer 1

Section 117 (Imprisonment 2 yrs)
1) Accused
2) Took and carried away (asportation)
Constructive taking
- By trick
- By intimation
- The result of mistake 
- By finding (belief owner can be discovered)
3) Property of another
- Physical (on their person)
- Defacto (property in place, exclusive right)
- Constructive (Legal right to it when they want)
4) With felonious intent (Acted with dishonesty)
5) Without claim of right
6) Intent to permanently deprive owner
7) Without consent
8) Good subject of larceny at common law

Section 94AA - Can steal property previously stolen

Question 2

What are the proofs for the offence of Fraud?

Answer 2

192E
A person by any DECEPTION, DISHONESTLY
- Obtains property belonging to another or
- Obtains a financial advantage or causes a financial disadvantage

Question 3

What are the fraud offences relating to identification information?

Answer 3

192J - Dealing with Identification information
- A person who deals (make, supply, use) with identification information (Whether real/living/dead/fictitious capable of being used to identify or purport identity of a person)
- With the intention of committing or of facilitating the commission of an indictable offence
192K - Possession of Identification information

Question 4

What are the proofs for make/use/posses false documents?

Answer 4

1. A person who makes, uses or possesses a false document with the intention that the person or another person will use it
   A) To induce some person to accept it as genuine, and
   B) Because of it being accepted as genuine
   - To obtain any property belonging to another or
   - To obtain a financial advantage, or cause financial disadvantage or
   - To influence the exercise of a public duty

Question 5

What is the difference between Larceny as a clerk/servant, Embezzlement and Larceny as a bailee?

Answer 5

Section 156 - Larceny as a clerk or servant (After the till)

• Accused is a clerk or servant
• Property was owned or in possession of master
• The accused stole the property from the master

Section 157 - Embezlement (Before the till)

• Received the property before coming into the possession of the master
• Stole the property

Section 125 - Larceny as a bailee

• Received property from the owner under an agreement (bailment)
• Took the property and converted to own use

Question 6

What is the Hamzy Principal?

Answer 6

Section 74 Criminal Regulation
Allows all indictments to be included in one offence
Benefit in doing this, allows the seriousness of the offence to be accurately portrayed (shows criminality)

Question 7

Fraud

What is the Gnosh test?

Answer 7

Whether according to ordinary standards of reasonable and honest people what was done was dishonest. Defendant must have realised what they were doing by those standards was dishonest.

Question 8

What are the elements of Robbery?

Answer 8

Section 94 - Robbery or stealing from the person

• Robbery
• Assault with intent to Rob
• Steal from a person (Table 1 over $5000)

Allows for an alternative verdict to larceny

Elements of Robbery

1) Unlawfully took and carried away property of some value
2) From the person of another, or in his or her presence or immediate and personal care and protection
3) Against his or her will
4) Either by force or putting him/her in fear
5) With the intention of permanently depriving him/her of the property

Question 9

What is required in the violence element of a robbery offence?

Answer 9

• Must be personal violence
• Must be done for the purpose of obtaining the property (Stealing intention)
• Can be towards a third person (hurt someone else)
• Must be imminent

Question 10

What is the case law for robbery?

Answer 10

R v HALE - Neighbour checks on the victim after two accused person attend premises. Victim held and mouth covered (before property stolen) being the act of assault.

Question 11

What are the aggravating circumstances of robbery?

Answer 11

Section 95 - Circumstances of aggravation
Circumstances that immediately before, at the time or immediately after involves
1) uses corporal violence on any person
- unnecessary violence - above and beyond
2) Intentionally or reckless inflicts ABH on any person
3) Deprives any person of their liberty

Question 12

Outline the other robbery offences under section 96-98 of the Crimes Act?

Answer 12

Section 96 Robbery with Wounding

• Wounding (breaking of dermis and epidermis) or
• Infliction of GBH (Serious injury, permanent disfigurement) (intent not required)

Section 97(1) Robbery being armed or in company
- Armed with an offensive weapon or instrument
(Armed - bearing or having immediate physical possession, must be available for immediate use
Offensive weapon - dangerous weapon, made or adapted for offensive purpose or used, intended for used or threatened to be used for offensive purposes)
- Being in company with another person

Section 97 (2) Robbery being armed or in company (Aggravated offence)
- Armed with a dangerous weapon (fiream, PW, speargun)

Section 98 - Robbery with arms and wounding

• Whilst armed with an offensive weapon/instrument
• Robbed or assaulted with intent to rob and
• Immediately before, at time or after wounded or inflicted GBH

Injury is required to the victim of the robbery, not merely to any person

Question 13

To prove a robbery with wounding offence do you need to prove intent? Explain answer with reference to case law

Answer 13

Ryan v The Queen - Wounding must be a voluntary action however no intent is required for the wounding. (Loaded rifle during robbery, accused discharges firearm, found guilty)

Question 14

What are the elements of a Break and Enter offence?

Answer 14

Section 112 - Break, Enter and Commit SIO
1) Breaks
Two types of breaking
Actual
Constructive
-Threat (threatens occupant to open
- Fraud (R v BOYLE - Deceptive manoeuvre or a trick)
- Conspiracy (Assistance from lawful occupant)
2) Enters
3) Dwelling House
4) Commits SIO

Question 15

What are the aggravated circumstances of a B&E and special aggravated circumstances?

Answer 15

Section 105A - Circumstances of Aggravation

1) Armed with an offensive weapon/instrument
2) In company of another person/s
3) Uses corporal violence on any person
4) Intentionally or recklessly inflicts ABH on any person
5) Deprives liberty
6) Knows person/s in place where offence committed

Circumstances of Special Aggravation

1) Intentionally or recklessly wounds or inflict GBH
2) Armed with a dangerous weapon

Question 16

What are the elements of the doctine of recent possession?

Answer 16

1) The property is stolen
2) The accused had possession of the property
3) The possession was recent to the actual theft
4) No credible explanation consistent with innocence

Question 17

What are the proofs of receiving?

Answer 17

Section 188 Receiving (property SOI)
Section 189 Receiving (property IO)
Section 189A Receiving goods stolen outside NSW

1) The property had been stolen
2) The accused, received, disposed or attempted to dispose of such property
3) At the time knew it was stolen property

Question 18

What is a ‘Special verdict’ in regards to the doctrine of recent possession?

Answer 18

Section 121 - Special verdict
Allows the court to come to a ‘special verdict’ that has the effect’ of recognising the concept of the doctrine of recent possession. When court finds the accused either stole the property or is the guilty receiver but are unable to say which. The court must find them guilty of larceny or receiving whichever is less.

• Have to lay both charges
• Property must be described identically,

Question 19

What are the elements of the offence of kidnapping?

Answer 19

Section 86 - Kidnapping
A person who takes or detains a person without the persons consent with the intention of:
- Holding person to ransom or
- Committing a SIO or
- Obtaining any other advantage

Question 20

What are the elements of the aggravated and special aggravated offences of kidnapping?

Answer 20

Aggravated offence

• In company of another or
• Inflicts ABH (at time, imm before or after)

Special Agg Offence

• In company and
• Inflicts ABH

Question 21

What is required to prove consent in relation to kidnapping?

Answer 21

• Complainant did not consent
• Accused know complainant was not consenting
  Child under 16 can not consent

Question 22

What are the elements of the offence of child abduction?

Answer 22

Section 87 -Child abduction

1) Person who takes or detains a child (under 12)
2) With the intention of removing or keeping the child
3) From the lawful control of any person having parental responsibility for the child
4) Without that persons consent

Question 23

Vehicle theft
A person commits a carjacking in a public street and takes a persons vehicle. What is the offence and when would it be aggravated?

Answer 23

Section 154C - Taking a motor vehicle or vessel with assault or with occupant
1. A person who
A) Assaults another person with intent
B) To take a motor vehicle or vessel
C) And without having consent of the owner or person in lawful possession
D) Takes and drives it, or takes for the purpose of driving or

2. A person who
   A) Without consent of the owner
   B) Takes and drives it
   C) When a person is in or on it

Circumstances of aggravation

1) In company
2) Armed with an offensive weapon or instrument
3) Intentionally or recklessly inflicts ABH on any person

Question 24

What are the elements of the offence of extortion (demand property with intent to steal)?

Answer 24

Section 99 - Demanding property with intent to steal

1) Whoever by menaces or by force
2) Demands any property
3) From any person
4) With intent to steal the same

Question 25

What is the defference between a extortion offence (section 99) and a robbery offence (Section 94)?

Answer 25

1) Stealing is not imminent (not at the time of threat)
2) Assault is not imminent (Violence to take place in future)
3) Threat is not personal violence

Question 26

What are the proofs of the offence of blackmail?

Answer 26

Section 249L - Blackmail
1) A person
2) Makes an unwarranted demand with menaces
A) With intention of obtaining a gain or causing a loss or (money or other property)
B) With intention of influencing the exercise of a public duty