Module 15 - LARCENY Flashcards
DEFINITION OF LARCENY?
At common law, larceny is committed by a person who, without the consent of the owner, fraudulently and without legal claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof.
PENALTY FOR LARCENY
The Crimes Act 1900 (NSW), Section 117 provides the penalty for larceny. Larceny is punishable by five years imprisonment and therefore is a serious indictable offence
ELEMENTS OF LARCENY
- The accused
- Without consent
- Fraudulently
- Without legal claim of right
- Taking and carrying away property (the property must be of value)
- Belonging to another
- Intent to permanently deprive
LARCENY AND STATUTE
Larceny is unusual in that it is still a common-law offence is not written into statute legislation in the Crimes Act. The elements discussed so far are based on the common law definition of larceny, with the Crimes Act only containing the penalty.
The problem with larceny having so many elements to satisfy is that, at times, one element will be unable to be satisfied at common law, when clearly the suspect has committed an offence. Each time this occurred a statute was created to fill the void.
DOCTRINE OF RECENT POSSESSION
A person, who is in possession of items (property) so soon after stealing or a break and enter has taken place, that no other conclusion should be reached by the Court than that the person is the thief, breaker or the guilty receiver in the absence of any explanation, Consider:
- Where you find the alleged offender
- The time since the offence
- The item the offender is carrying
- Guilty knowledge inferred from silence or with no other reasonable explanation for possession offered.
WHAT IS LARCENY BY FIND?
Larceny by find a Larceny offence (Common Law Offence) (Crimes Act 1900 (NSW) Section 117) (Penalty Only). The contentious issue is that the accused ‘found’ the property and decided to take and keep it. The ‘finding’ may be in circumstances that might appear as though it were abandoned – such as in a park or on the side of the road. There is an obligation to take all reasonable steps to find an owner.
What Act and Section is “Breaking etc into any house etc and committing serious indictable offence”
Crimes Act 1900 (NSW) Section 112
ELEMENTS OF SECTION 112 BREAK ENTER AND COMMIT SERIOUS INDICTABLE OFFENCE
- Accused
- Breaks
- Enters
- Dwelling house or other building
- Committed a serious indictable offence (5+ years imprisonment)
BREAKING CAN BE PERFOMED IN ON OF TWO WAY
An Actual Break or A Constructive Break
ACTUAL BREAKING DEFINITION
Actual breaking involves the breaking of the seal of the premises, interfering with the physical security of the building
CONSTRUCTIVE BREAKING DEFINITION
Constructive breaking involves entry being gained through unauthorized use of one of the following:
1. Key
2. Fraud
3. Threat
WHAT IS NOT CONSIDERED A BREAK
- Pushing open a door that is ajar
- Raising a partially opened window and not secured by latch or chain
- Entering through a door or window that is already open
ENTRY DEFINITION
It is generally understood that entry means moving from the outside to the inside of the dwelling-house or other building.
WHAT ACT AND SECTION IS “Stealing property in a dwelling-house” and what are the elements?
Crimes Act 1900 (NSW), Section 148
1. The accused
2. Steals
3. Property
4. In a dwelling house and carries out of such dwelling house
WHAT DO YOU NEED TO CONSIDER INVESTIGATING A BREAK AND ENTER
- Gather physical evidence (photographs, seizure of exhibits, CCTV, forensic evidence etc)
- Preserve the crime scene for the Forensic Services Group (FSG) to conduct a forensic examination of the crime scene
- Take a report from the victim for WebCOPS
- Complete the 17 point check list
- Obtain statement from owners and witnesses
- Investigate the crime – attempt to identify and interview the offender
