OF03 Dishonesty Offences 1

Question 1

Elements of ‘Theft (takes)’

Answer 1

Question 2

Elements of ‘Theft (uses or deals)’

Answer 2

Question 3

When does someone have an ‘interest’ in property?

Answer 3

1. If you get your watch serviced and they charge you $30 for their work - the servicer has a $30 interest in your watch. If you take it without paying, you are depriving an ‘owner’ of their interest in that property.
2. If you buy something with your friend for $50 each, you both have a 50% interest in that property.

Question 4

What is theft by finding?

Answer 4

“Finder’s keepers, loser’s weepers” - not true

If you find lost property, you must make every reasonable effort to return it to its lawful owner (e.g. handing it in the police). The finder may have ‘physical possession’ but the ownership remains with the person who lost it who is still the owner.

Question 5

When is theft complete?

Answer 5

Theft is complete as soon as the property is physically moved.

Note: This may not be the best time to prove intention though, but is technically when the charge can be used.

Question 6

Three examples of ownership in relation to theft

Answer 6

1. Possession or control - e.g. my police uniform isn’t mine, but I have possession and control over it
2. Any interest in the property - e.g. getting your watch serviced or buying something with a friend
3. Right to take possession or control of the property - e.g. lending someone something, you still have a claim of right to the property as it is yours

Note: An owner of property may be guilty of theft against another owner of that property.

Question 7

Why is knowing the value of stolen property important in regards to theft and receiving?

Answer 7

The value of the property stolen determines the penalty imposed upon conviction.

The value of an item is its current resale value, not its replacement cost.

• > $1,000 - not exceeding 7 years
• > $500 - not exceeding 1 year
• < $500 - not exceeding 3 months

Question 8

Elements of ‘Burglary (enters)’

Answer 8

Question 9

Explain two mechanisms of entry that are still considered “without authority” even if prima facie authority was given

Answer 9

THREAT and ARTIFICE

Even though permission for entry has been obtained, the nature of act (threat or artifice) causes the authority to be negated meaning they enter “without authority”.

Artifice involves being “cunning, skilled, artful”. Making up false pretences or being deceitful in your conduct.

Question 10

Can it be burglary if nothing is stolen and the offender just breaks stuff?

Answer 10

Yes, all that is required is an intent to commit an imprisonable offence in the building (doesn’t need to be theft). If all the other elements are also met, it is burglary, regardless of what (if anything) was stolen.

Question 11

Elements of ‘Burglary (having entered)’

Answer 11

Question 12

What is a common example of ‘remaining without authority’?

Answer 12

When you enter a store, there is implied authority to enter. If you remain in a store after closing hours, you are remaining without authority.

The intent to commit an imprisonable offence can be formed while remaining on the premises.

Question 13

What is ‘Aggravated burglary’?

Answer 13

(1) 14 years

(a) While committing burglary → has a weapon with them or uses anything as a weapon
(b) Having committed burglary → has a weapon with them, or uses anything as a weapon, while still in the building or ship

(2) 5 years

(a) Being armed with a weapon with intent to commit burglary
* Note: Physical possession of a weapon is not necessary, ready access to a weapon is sufficient for the critera to be met (e.g. a knife in a bag).*
* Note: Just because an offender is in possession of a tool such as a screwdriver or crowbar, does not automatically mean it is a weapon (look at how it’s used and the intent for how it would be used).*

Question 14

What is a weapon in relation to aggravated burglary?

Answer 14

A weapon is not defined in the Act but is considered as:

• Items designed or adapted for causing injury to people
• Items intended to be used for such purposes (e.g. anything can become a weapon under this point if used as such)

Question 15

What is the offence of ‘Possession of instruments for burglary’?

Answer 15

Without lawful authority or excuse, someone is in possession of any instrument capable of being used for burglary with intent to use it for such purpose.

Used when offender(s) are located on the way to commit a burglary or near the scene of an intended burglary.

Question 16

Elements of ‘Robbery’

Answer 16

Question 17

Is it robbery if the violence happens (a) before; and (b) after the theft?

Answer 17

(a) Possibly - if the property is handed over because earlier threats are still operating in the mind of the victim, there may be sufficient nexus to estabilsh robbery.
(b) No - violence must be used before or at the time of theft - violence after the theft would be assault or some other offence.

Question 18

Can a threat of violence come solely from conduct?

Is fear of a person’s reputation enough to constitute a threat?

Answer 18

Yes, threats of violence can be demonstrated by conduct or words (e.g. rolling up your sleeves and clenching your fist).

No, there must be an actual threat by words of conduct, just ‘fear’ is not enough to warrant a threat being made (e.g. someone’s reputation, a gang member).

Question 19

In relation to robbery, do threats under “used to extort property” have to exist directly in relation to stealing property?

Answer 19

Yes, the violence or threats of violence must have been used for the purpose of extorting the property being stolen.

Question 19

Is hitting someone over the head to steal their handbag either (a) used to extort the property stolen; or (b) to prevent or overcome resistance to the property being stolen?

Answer 19

This is (b) to prevent or overcome resistance to the property being stolen as it can be assumed that the hit to the head was made to prevent the victim resisting the offence occuring as they will not have the opportunity to resist.

Question 20

Is it robbery if a handbag is easily snatched off someone and why/why not?

Answer 20

If property is snatched from another person and there is no violence or injury, the offence is theft as the elements of robbery are not met.

Question 21

What is ‘Aggravated robbery’?

Answer 21

Robbery with -

• Causes grievous bodily harm
• Is with another person
• Armed with an offensive weapon or instrument (which includes a firearm)

Question 22

What is ‘Assault with intent to rob’?

Answer 22

Where a person assaults a person with the intention to rob them (but no theft takes place).

Question 23

What is ‘Demanding with intent to steal?

Answer 23

Where a person menaces or by any threat, demands any property from any persons with intent to steal it.

Question 24

Elements of ‘Receiving’

Answer 24

Question 25

When is the offence of receiving complete?

Answer 25

As soon as the offender has, either exclusively or jointly with the thief, possession of, or control over, the property or helps in concealing or disposing of the property.

Question 26

What criteria must “property” meet in relation to receiving?

Answer 26

The property must be all or part of the original property dishonestly obtained.

1. A thief steals a lawnmower, dismantles it and gives half to his friend. The friend has received part of the original property and is criminally liable for receiving.
2. A thief steals a TV from a shop and gives it to a friend telling him it’s been stolen. The friend has received all of the original property and is criminally liable for receiving.
3. A thief steals a $10 note and then goes to a dairy to change it into two $5 notes. He hands one of the notes to his friend and tells him about the original theft. The friend has not received all or part of the original property and is not criminally liable for receiving.

Question 27

What is guilty knowledge and how can it be proven?

Answer 27

Guilty knowledge on the part of the receiver is an essential element for the offence of receiving.

Can be proved by:

• Direct evidence; e.g. evidence given by the actual thief (this may be unwise to convict on theif’s uncorroborated evidence)
• Circumstantial evidence;
  
  • the receiever purchased the property at gross undervalue (way cheaper than one would expect)
  • there are suspicious circumstances around the acquisition of the property
  • the nature or amount of the property causes suspicion
  • the receiver falsely denies having possession of the property
  • the receiver concealed the property so that it could not be found
  • the receiver’s general conduct in relation to the property

Question 28

What happens to the receiver if the person who has committed the theft cannot be charged due to age or mental condition?

Answer 28

Consider charging them under theft instead of receiving.

E.g. a ten-year-old bouy steals a $25 watch from a shop and takes it home and tells his dad. The father decides to keep it and is now liable for theft (‘takes from son’).

Question 29

What is the doctrine of recent possession?

Answer 29

It is a legal presumption that if a person is found in possession of property that has recently been stolen, this is sufficient ‘circumstantial’ evidence to justify a finding that the possessor is either the thief or a dishonest receiver.

The onus is on the defendant to give a satisfactory explanation as to how they are in possession of the stolen property.

Question 30

If someone receives something knowing it’s stolen but not from what offence, did they have knowledge or were reckless?

Answer 30

Knowledge

Knowledge is equivalent to actual belief. It is enough if the receiver believes that the property was obtained by an imprisonable offence, even if the person does not know which particular offence.

Question 31

If you punch someone while fighting them and their wallet drops from their pocket so you pick it up and run, is this robbery?

Answer 31

No, the intent to steal must exist at the time the violence is used, or the threats are made.

The intent to steal cannot be an afterthough after the act of violence.

If so, this would be assault and theft.

Question 32

Is being armed with a knife with intent to commit burglary ‘Aggravated burglary’?

Answer 32

Yes, this meets the necessary criteria as they had the intent to burgle and possession of a weapon.