Offences Flashcards
OF 01,03,04,05,06,07
Compare the Summary Offences Act 1981 section 9 and the Crimes Act 1961 section 196. Both these sections refer to minor assaults. What is the difference between the sections?
In section 9 the penalty is a term of imprisonment for a term not exceeding 6 months or a fine not exceeding $4,000 and in section 196 the penalty is a term of imprisonment not exceeding 1 year.
Elements of Assault
Assaults,
Another person
Elements of Assault with a Weapon
Assaults, Another person, Using anything as a weapon. OR Having anything with him or her in circumstances that prima facie show an intention to use it as a weapon.
Penalty for Assault on a police, prison or traffic officer in the summary offences act section 10 and power of arrest
Penalty: Six months and/or $2,000
Power of arrest: Section 39(1), Summary Offences Act 1981
Consent to assault examples
In everyday life, technical assaults are committed through such acts as:
• Touching a person on the shoulder.
• Shaking hands.
• Acts of affection, such as a kiss or a hug.
These acts have an implied consent.
However, a person cannot consent to a criminal assault; that is, an assault
committed by a person with intent to hurt or harm the victim.
Definition of Indirect assault
Example required
An indirect assault is where force is not applied directly to the victim.
Example:
Pulling a chair away as someone is about to sit on it.
Striking a horse so that the horse rears and throws the rider.
Definition of Conditional assault
Example required
In this case, the victim is told the assault will not be carried out if he or she complies with a condition.
Example:
A threatens to assault B and accompanies the threat with an act or gesture. But A says to B: “You won’t be assaulted if you leave the property.”
Definition of Transferred Malice
Example required
Under the doctrine of transferred malice a defendant will be liable for an offence if he or she has the necessary mens rea and commits the actus reus even if the victim differs from the one intended.
Example:
McMasters struck his wife, who was carrying their child in her arms. As a result of the blow, the baby fell to the ground and was injured. McMasters was charged with assault on the child, but argued that he could not be guilty, because he had not applied any force to that child.
Exception of Transferred Malice
If the defendant has the mens rea for a different offence from that which he commits however, the intent cannot be transferred.
3 Factors to consider in deciding on which type of assault charge. Example of each factor?
The intent
• When the offender applied the force, what was his or her intent?
• Did the offender want to scare, injure or kill the victim?
Weapons or degree of force used
• Was the assault a mere slap on the face or was a knife or other weapon used?
Injury received
• Did the victim sustain any injury? Was the victim ‘injured’, ‘wounded’ or ‘killed’?
Elements of Theft
The offence of Theft by Taking Section 219(1)(a)
Dishonestly
Without claim of right
Takes
Any Property
With intent to deprive any owner permanently of that property
OR
With intent to deprive any owner permanently of any interest in that property
Elements of Theft
The offence of Theft by Using or Dealing
Dishonestly
Without claim of right
Uses or deals with
Any Property
With intent to deprive any owner permanently of that property
OR
With intent to deprive any owner permanently of any interest in that property
After obtaining possession or control of that property in whatever manner
Example of injury would correspond with which offence charge.
A person is slapped in the face.
Common assault.
Example of injury would correspond with which offence charge.
A person is ‘king hit’ from behind with a closed fist, breaking his jaw.
Injury with intent.
Example of injury would correspond with which offence charge.
A person is punched about the head a number of times, causing the loss of sight in oneeye. Asheisbeingpunched,the offender is telling him: “You will not wink at my girl again with this eye.”
Wounding with intent.
Example of injury would correspond with which offence charge.
A person lunges at another with a knife to stabhiminthestomach. Thevictimtwists and the knife goes into his arm.
This could be either of the following, depending on the intent:
• Wounding with intent.
• Attempted murder.
Meaning of Claim of right
Claim of right: At the time of the act, the person believed that they or someone else had a right to own or possess the property that is the subject of the offence.
E.g Person A lends Person B their trailer. Sometime later, Person B refuses to return the trailer to Person A. Person A then has to effectively “steal” or take it back off Person B. Person A has a claim of right to the trailer.
Example of injury would correspond with which offence charge.
A person picks up a beer bottle and tries to hit the victim but the victim deflects the bottle.
Assault with a weapon.
Meaning of Dishonestly
“‘Dishonestly’ in relation to an act or omission, means done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority.”
Meaning of use or deal
To “use or deal with” property, you must first gain possession or control of the property and then begin to make decisions about that property as though you were the owner.
Meaning of Ownership
a) possession or control of the property
b) any interest in the property, or
c) the right to take possession or control of the property.
An owner of any property may be guilty of theft against another owner of that property.
Meaning of Takes
For tangible property, theft is committed when the offender moves the property or causes it to be moved. The slightest moving is enough.
“Taking” does not include obtaining ownership or possession of, or control over, any property with the consent of the owner, whether or not consent is obtained by deception.
Any Property
Anything whatsoever, whether tangible or intangible, that is the property of any person and has value.
Difference Between Takes -Uses and deals
for theft
Takes/
Physically moves the property.
Uses or deals with/
Exceeds the authority or conditions given by using or dealing with the property in any manner
Why is the value of an item important?
The value of the property stolen is important because it determines the penalty imposed upon conviction. This is covered by Section 223 of the Crimes Act 1961.
Every one who commits theft is liable as follows:
a) in the case of an offence against section 220 (theft by person in special relationship), to a term of imprisonment not exceeding seven years;
b) if the value of the property exceeds $1000, to a term of imprisonment not exceeding seven years;
c) if the value of the property exceeds $500, to a term of imprisonment not exceeding one year;
d) if the value of the property does not exceed $500, to a term of imprisonment not exceeding three months.
3 Other types of theft
Theft by person in special relationship
Theft of animals
Theft by spouse
Procedures for /
On receipt of a report
Find out the exact location of the offence. Obtain details of the suspect/offender, including:
• His or her description.
• The mode of travel.
Find out the time the offence occurred.
Obtain a description of the stolen property (if available).
Procedures for /
En route to the scene
Watch out for the offender.
Maintain communication with Comms.
Note the time, date and place in your notebook.
Procedures for /
Action at the scene
Immediately check to find out whether the offender is still present. If so, locate and control.
Speak to the informant/victim and obtain full details. Give a situation report (SITREP) to Comms.
Procedures for /
Scene examination
Check the scene for property dropped by the offender.
Check for discarded property in areas such as:
• Toilets.
• Staff rooms.
• Alleys.
• Rear of buildings.
Look for footwear impressions and tracks of vehicle tyres.
Look for areas likely to have the offender’s fingerprints, such as:
• Display cases.
• Bottles of liquor.
• Boxes.
• The stolen property.
Note the lighting and a description of the scene.
What documentation is required for theft or dishonstley taking/using file
If the offender is located, your file should consist of: • File Cover Sheet and statistics • Police 258 Report • Charging Document • Caption and Summary • Victim Impact Statement • Reparation Schedule • Video Interview Sheet or copy of the written interview • Job Sheets • Police 268 (Property Record Sheet) • Offender Report • Offence Report.
Procedures for /
Interviews
Obtain particulars from the victim, covering the following points:
• Circumstances of the theft.
• Elements of the offence.
• Description and value of the property stolen.
• Serial numbers.
• Ownership.
• Description of the offender and how they are identifiable by their action
• The offender’s MO.
Note the layout of the scene and the positions of the eye witnesses. Identify other possible witnesses.
Procedures for /
On locating the suspect/offender
Ask the person to accompany you to the police station.
Take steps to recover the stolen property by:
• Search warrant.
• Search by consent.
• Search subsequent to arrest. Note: This common law power does not allow you to search the address but does allow you to seize stolen property in the offender’s possession, or close at hand.
• Issue a receipt for the property obtained. Use a Police 268 form.
• Interview the suspect at the police station, and:
• Ensure that the Practice Note on Police Questioning and the Bill of Rights are complied with.
• Conduct the interview on video, unless the offender objects. In that case, conduct a Question and Answer interview. Record it in your notebook.
• Decide whether the offender will be dealt with by way of summons or arrest.
Procedures for /
Final action
- Label and secure the exhibit.
- Inform your NCO of the outcome.
- Advise the victim of the action taken.
Procedures for /
File
If the offender is located, your file should consist of: • File Cover Sheet and statistics • Police 258 Report • Charging Document • Caption and Summary • Victim Impact Statement • Reparation Schedule • Video Interview Sheet or copy of the written interview • Job Sheets • Police 268 (Property Record Sheet) • Offender Report • Offence Report.
Elements of burglary
Crimes Act 1961 Section 231(1)(a)
Enters Any building OR Any building OR Any part of a building OR Any part of a ship Without authority With intent to commit an imprisonable offence in the building OR ship
Penalty for burglary
10 years imprisonment
Definition of “Enters”
The offender could “enter” in a variety of ways. For example:
• As soon as an offender’s foot goes inside an open doorway to a building.
• As soon as the tip of a screwdriver / jemmy bar goes inside the window,
door etc. Simply trying to open the window or door does not constitute
entry, this would be an “attempt” to enter.
• The act of jumping over a fenced off yard or using wire cutters to cut a
hole in a wire fence that surrounds a garden centre or warehouse area.
• Pushing a fishing rod through an open window in an attempt to take
property.
“Any Building”
” Includes houses, warehouses, tents, caravans, closed caves, closed tunnel,
shops etc, whether permanent or temporary.
“Any Ship”
Includes ocean liners through to dinghies.
“Without
Authority”
For a person to commit the offence of burglary they must have entered a
building or a part of a building/ship or enclosed yard without authority. The
most obvious example of an offender being in a building without authority is
where an offender breaks into a private residence. Another example is where
a member of the public enters an area, for example the back of a shop, and
does not have legitimate access to that area, or would reasonably expect,
under the circumstances, not to have permission even if they did know the
owner/occupier.
“Enclosed
Yard”
A yard is enclosed if the bulk of the boundary is in some way enclosed, e.g. a
fence or other form of border. The area around a warehouse that is fenced
off, but the big main gates are wide open is still an enclosed yard. Also
includes fenced off garden centres, car yards etc.
The section of a dwelling house that is defined by fences around 3 sides and
shrubs along the front is still an enclosed yard.
Having said this, for practical purposes, if property is taken from the front of
an address that is not fenced in any way, then theft would be the appropriate
charge.
Part of a
building or a
ship”
There will be occasions when an offender enters a building or ship
legitimately. At the time of entry, there is no intent to commit an
imprisonable offence. However, while in the building, the offender forms such
intent and then enters another part of the building to commit an imprisonable
offence. The offender has now entered “part of a building or ship”.
e.g
John enters K Mart Store to buy a shirt. While he is browsing through the
stock, he sees a sales person’s wallet on a desk in an adjoining office. He
walks into the office and takes the wallet.
“With intent to commit an imprisonable offence in the building or ship”
The offence must be an imprisonable offence.
The offence will be a category 2, 3 or 4 offence.
It is unnecessary that the intended offence should have been committed or
even attempted. All that is required is the necessary INTENT. This could
include the case of a person who enters a house to steal property but is then
frightened off by the owner before committing the theft.
“Having
Entered”
The offender has entered the building, ship or enclosed yard legally and
legitimately and then decides to commit an imprisonable offence.
“Remains
Without
Authority”
The offender turns their mind to a criminal act, e.g. in a shop and decides to
steal something. This does not in itself remove his authority to be in the
premises and create an offence of burglary, but his further actions from this
point could.
Authority would need to be removed somehow AND the intent to commit an
imprisonable offence be formed when he remained in the premises.
e.g
While in a shop/building etc, the offender decides to commit an imprisonable
offence and hides within the location ON PURPOSE. Their authority to
remain would be void at the time the store closes.
“Artifice”
“Artifice” involves being “cunning, skilled, artful”; for example:
• Making up false Telecom identification and then pretending you need to
enter the house to check the telephones.
• Promising a young child sweets if he or she opens the door.
Although it seems like entry has been obtained by permission the nature of the
act (threat or artifice) causes the authority, either expressed or implied, to be
negated. Therefore they enter “without authority”.
Elements of Possession of Instruments for Burglary section 233(1)(a)
“Without lawful authority or excuse”: this means the subject is not authorised
by law or does not have a legitimate reason for the possession or behaviour.
“Has in his or her possession”: this refers to the physical element of custody
and a mental element of knowledge of that custody. The offender must have
effective control over the item. (Adams “Student Edition” CA 244.04).
“Any instrument capable of being used for burglary”: a real article that can
physically help the offender to commit burglary, such as jemmy bar or glass
cutter.
“With intent to use it for such a purpose”: the circumstances must show that
the offender intended to use the instruments to commit burglary.
Penalty for robbery
Everyone who commits robbery is liable to imprisonment for a term not
exceeding ten years.”
definition of Robbery
“Robbery is theft accompanied by violence or threats of violence, to any
person or property, used to extort the property stolen or to prevent or
overcome resistance to its being stolen.
Elements of Robbery
Theft Accompanied by violence OR Accompanied by threats of violence To any person OR To any property Used to extort the property stolen OR To prevent or overcome resistance to the property being stolen
assault with intent to rob (s.236) or demanding with menace (s.239(2))
It is not robbery if violence is used or threats of violence are made but no
property is taken. However, this may constitute another offence such as
assault with intent to rob (s.236) or demanding with menace (s.239(2))
Why would it not be robbery if some punched someone over for there wallet but ran before away before getting the chance to take anything.
What would be the appropriate charge instead
All the elements of the offence of theft must be proved (section 219 of the
Crimes Act 1961). If theft cannot be proven, it is not robbery.
Charge with assault with intent to rob (s.236) or demanding with menace (s.239(2)).
Aggravated robbery is where:
section 235 of the Crimes Act
1961.
• a person robs any person and, at the time, before or after the robbery,
causes grievous bodily harm to any person
or
• being together with any other person or persons, robs any person
or
• a person armed with an offensive weapon or instrument (which includes a
firearm), robs any other person.
Penalty for Aggravated robbery
The penalty is 14 years.
Assault with
intent to rob
Assault with intent to rob is where any person assaults (as defined in section
2 of the Act) a person with the intention to rob them.
Subsection 1 provides a penalty of 14 years where a person:
• causes grievous bodily harm to that person or any other person
or
• being armed with any offensive weapon or instrument, assaults that
person or any other person
or
• being together with any other person or persons, assaults that person or
any other person.
Subesection 2 provides a penalty of 7 years where someone assaults any
person with intent to rob that person or any other person, but there are none
of the aggravating factors listed in Subsection 1.
Demanding with
intent to steal
“Everyone is liable to imprisonment for a term not exceeding
7 years who, with menaces or by any threat, demands any
property from any persons with intent to steal it.”
“Accompanied
by violence”
Robbery is committed if violence is used on the victim at the time of the
theft.
Example: A man is knocked to the ground and his wallet is stolen by the
assailant.
“Accompanied
by threats of
violence”
If property is handed over because
earlier threats are still operating on the mind of the victim, there may be a
sufficient nexus to establish robbery.
R v Maihi [1993] 2 NZLR 139
There must be an actual threat of violence by words or conduct. It is not
sufficient if there is only fear.
Example: Fear may NOT be caused by reputation, without an actual threat
being made.
“To any person
or property”
The words “any person” include threats or violence to the person being
robbed and also any other person.
Example: Threatening the victim’s child, if the victim does not hand over his
or her wallet.
Example: “Give me your wallet, or I will smash your car to pieces.”
“Used to extort
the property”
“Extort” means to obtain by violence or intimidation, or to extract forcibly.
The violence or threats of violence must have been used for the purpose of
extorting the property being stolen.
“To prevent or overcome resistance to property being stolen”
This normally applies where violence, rather than threats of violence, is
exercised.
Examples:
• Tying up the night watchman inside a building while stealing the safe
from that building. Tying him up would overcome and perhaps prevent
any further resistance to the theft.
• Knocking a person to the ground so they will not have the opportunity to
resist.
“Intent to steal”
If violence was used but not with intent to steal but property was still taken what would be the charges
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 afterthought after the act of violence.
If the violence or threats of violence are not used to take the person’s
property, it is not robbery. Instead, the offences would be assault and theft.
basic principals of initial action at the scene of robbery
The basic principles to remember are: • Freeze. • Guard. • Control. • Preserve. Set boundaries. Where necessary, use members of the public as guards until help arrives. Keep your boundaries wide. Observe the scene at all times, and: • Make full notes. • Sketch plans. • Keep unauthorised people away. • Be prepared to cope with changes; for example, rain, wet footprints drying and so forth.
Elements of Dishonestly Taking a Document OR
Dishonestly Obtaining a Document
Dishonestly Without claim of right Takes OR Obtains Any document With Intent to obtain Property OR Service OR Pecuniary advantage OR Valuable consideration
Elements of Dishonestly Uses or Attempts to Use a Document
Dishonestly Without claim of right Uses OR Attempts to use Any document With the intent to obtain Property OR Service OR Pecuniary advantage OR Valuable consideration
Examples of a Document
a) any paper or other material used for writing or printing that is marked with
matter capable of being read; or
b) any photograph, or any photographic negative, plate, slide, film, or
microfilm, or any photostatic negative; or
c) any disc, tape, wire, sound track, card, or other material or device in or on
which information, sounds, or other data are recorded, stored (whether
temporarily or permanently), or embodied so as to be capable, with or
without the aid of some other equipment, of being reproduced; or
d) any material by means of which information is supplied, whether directly
or by means of any equipment, to any device used for recording or storing
or processing information; or
e) any material derived, whether directly or by means of any equipment,
from information recorded or stored or processed by any device used for
recording or storing or processing information.
