Offences Flashcards
OF 01,03,04,05,06,07
1
Q
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?
A
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.
2
Q
Elements of Assault
A
Assaults,
Another person
3
Q
Elements of Assault with a Weapon
A
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.
4
Q
Penalty for Assault on a police, prison or traffic officer in the summary offences act section 10 and power of arrest
A
Penalty: Six months and/or $2,000
Power of arrest: Section 39(1), Summary Offences Act 1981
5
Q
Consent to assault examples
A
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.
6
Q
Definition of Indirect assault
Example required
A
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.
7
Q
Definition of Conditional assault
Example required
A
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.”
8
Q
Definition of Transferred Malice
Example required
A
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.
9
Q
Exception of Transferred Malice
A
If the defendant has the mens rea for a different offence from that which he commits however, the intent cannot be transferred.
10
Q
3 Factors to consider in deciding on which type of assault charge. Example of each factor?
A
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’?
11
Q
Elements of Theft
The offence of Theft by Taking Section 219(1)(a)
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
12
Q
Elements of Theft
The offence of Theft by Using or Dealing
A
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
13
Q
Example of injury would correspond with which offence charge.
A person is slapped in the face.
A
Common assault.
14
Q
Example of injury would correspond with which offence charge.
A person is ‘king hit’ from behind with a closed fist, breaking his jaw.
A
Injury with intent.
15
Q
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.”
A
Wounding with intent.
16
Q
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.
A
This could be either of the following, depending on the intent:
• Wounding with intent.
• Attempted murder.
17
Q
Meaning of Claim of right
A
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.
18
Q
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.
A
Assault with a weapon.
19
Q
Meaning of Dishonestly
A
“‘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.”
20
Q
Meaning of use or deal
A
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.
21
Q
Meaning of Ownership
A
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.
22
Q
Meaning of Takes
A
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.
23
Q
Any Property
A
Anything whatsoever, whether tangible or intangible, that is the property of any person and has value.
24
Q
Difference Between Takes -Uses and deals
for theft
A
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
25
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.
26
3 Other types of theft
Theft by person in special relationship
Theft of animals
Theft by spouse
27
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).
28
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.
29
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.
30
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.
31
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.
```
32
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.
33
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.
34
Procedures for /
| Final action
* Label and secure the exhibit.
* Inform your NCO of the outcome.
* Advise the victim of the action taken.
35
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.
```
36
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
```
37
Penalty for burglary
10 years imprisonment
38
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.
39
"Any Building"
" Includes houses, warehouses, tents, caravans, closed caves, closed tunnel,
shops etc, whether permanent or temporary.
40
"Any Ship"
Includes ocean liners through to dinghies.
41
“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.
42
"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.
43
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.
44
```
“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.
45
"Having
| Entered"
The offender has entered the building, ship or enclosed yard legally and
legitimately and then decides to commit an imprisonable offence.
46
"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.
47
“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".
48
```
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.
49
Penalty for robbery
Everyone who commits robbery is liable to imprisonment for a term not
exceeding ten years.”
50
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.
51
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
```
52
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))
53
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)).
54
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.
55
Penalty for Aggravated robbery
The penalty is 14 years.
56
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.
57
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.”
58
“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.
59
“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.
60
“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.”
61
“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.
62
```
“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.
63
"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.
64
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.
```
65
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
```
66
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
```
67
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.
68
“Intent to
| obtain”
“Intent to obtain” has no case law history as yet (July 2003).
It is likely to mean an intention to:
“obtain or retain for himself or herself or for any other person”. Section 217 of
the Crimes Act
69
Penalty for Dishonestly Uses or Attempts to Use a Document /
Dishonestly Taking a Document OR
Dishonestly Obtaining a Document
7 Years Imprisonment
70
Elements for Receiving
```
Receives
Any property stolen
OR
Any property obtained
by any other
imprisonable offence
Knowing that property
to have been stolen or
so obtained.
OR
Being reckless as to
whether the property
had been stolen or so
obtained
```
71
“Property”
The property must be all or part of the original property dishonestly
obtained.
72
Is the friend criminally liable for receiving stolen property/
A thief steals a $10 note. He then cuts it in half and gives half to this
friend, telling him it has been stolen.
Yes
Result: The friend has received part
of the original property. He is criminally liable for receiving.
73
Is the friend criminally liable for receiving stolen property/A thief steals a television from a shop and then gives it to a friend, telling
him it has been stolen.
Yes
Result: The friend has received all of the original
property. He is criminally liable for receiving.
74
Is the friend criminally liable for receiving stolen property/A thief steals a $10 note. He then goes to a dairy and changes
the note for 2 x $5 notes. He hands one of the $5 notes to his friend and
tells him about the original theft of the $10 note.
No
Result: The friend has
not received all or part of the original property. He is not criminally
liable for receiving.
75
"When receiving
| is complete"
The act of receiving any property stolen or obtained by an imprisonable
offence, is complete as soon as the offender has, either exclusively or jointly
with the thief or any other person, possession of, or control over, the property
or helps in concealing or disposing of the property. See section 246(3).
76
“Stolen”
Property obtained by theft has been “Stolen”. An example of “Property
stolen” would also include property taken in a burglary or robbery
77
“Obtained by
any other
imprisonable
offence. ”
An example of any other imprisonable offence would be obtaining by
deception.
78
“Knowing the
property to have
been stolen or
obtained”
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.
79
```
“Being reckless
as to whether
the property
had been stolen
or dishonestly
obtained”
```
Recklessness means a conscious taking of an unreasonable risk. A complete
indifference about whether goods were or were not stolen would, itself, be
enough.
If the receiver suspects that the property has been stolen and deliberately
‘shuts his or her eyes’ to the circumstances, the person can be deemed to be
“reckless”. The following factors could be evidence of recklessness:
• The sale or exchange takes place in suspicious circumstances.
• A computer is sold in a pub toilet.
• A potential receiver is shown a video recorder that is hidden under the
lounge floorboards.
80
4 Elements for Possession and
| control
The element of possession has been summarised by the Court, in Cullen v R,
as:
• Awareness that the item is where it is;
• Awareness that the item has been stolen;
• Actual or potential control of the item; and
• An intention to exercise that control over the item.
81
Essential elements to prove "guilty knowledge"
Guilty knowledge on the part of the receiver is an essential element for the
offence of receiving. Guilty knowledge may be proved by:
• Direct evidence; for example, evidence given by the actual thief.
However, it is unwise to convict an alleged receiver on the thief’s
uncorroborated evidence.
• Circumstantial evidence; for example:
− the receiver purchased the property at gross undervalue
− 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
82
"Doctrine of Recent Possession"
If a person is found in possession of property that has recently been stolen,
this is sufficient evidence to justify a finding that the possessor is either the
thief or a dishonest receiver. The possession is accepted by the courts as
circumstantial evidence that the person either stole the property or received it
from the thief.
This legal presumption is known as “the doctrine of recent possession”.
It puts the onus on the person found in possession of the property to provide
an explanation for having it, or be charged with theft or receiving
83
Example of "Doctrine of Recent Possession"
A woman living in a boarding house had her wallet stolen. The wallet was
purchased overseas and was not readily available in New Zealand. A male
arrested six days later on another charge was found to be in possession of the
wallet. No satisfactory explanation was forthcoming and he was convicted of
theft. (Devereaux v Police)
The courts have held the following situations to be cases of ‘recent’
possession:
• Possession of a stolen motor car three months after the theft.
• Possession of an axe and tools three months after the theft.
• Possession of sheep a few days after the theft.
If the defendant cannot give a satisfactory explanation for being in possession
of the stolen property, the court may infer that he or she stole or received the
property
84
Penalty for "receiving" If the value of the property received exceeds $1000
to imprisonment for
| a term not exceeding seven years
85
Penalty for "receiving" If the value of the property received exceeds $500 but does not exceed
the sum of $1000
to imprisonment for a term not exceeding one year
86
Penalty for "receiving" If the value of the property received does not exceed $500
to imprisonment for a term not exceeding three months
87
Elements of Element of
unlawful
taking
```
Dishonestly
Without claim of right
But not so as to be guilty of
theft
Takes
For his or her own
purposes
OR
Another person’s purposes
For any persons purposes.
Any vehicle
OR
Any ship
OR
Any Aircraft
OR
Any part of any vehicle,
ship or aircraft
OR
Any horse
```
88
Element of
| “unlawful uses”
Dishonestly
Without claim of right
But not so as to be guilty of
theft
Uses
```
For his or her own
purposes
OR
Another person’s purposes
For any persons purposes.
Any vehicle
OR
Any ship
OR
Any Aircraft
OR
Any part of any vehicle,
ship or aircraft
OR
Any horse
```
89
Penalty for “unlawful uses”
7 years imprisonment
90
Penalty for unlawful
| taking
7 years imprisonment
91
Elements for Unlawful Interferes with Vehicle
```
Dishonestly
Without claim of right
Interferes with
Any vehicle
OR
Any Ship
OR
Any aircraft
```
92
Penalty for Unlawful Interferes with Vehicle
2 years imprisonment
| Crimes Act 1961, Section 226(2)
93
Elements for Unlawfully getting into OR upon
Dishonestly
Without claim of right
Gets into
OR
Gets upon
```
Any vehicle
OR
Any Ship
OR
Any aircraft
```
94
Elements for Possession of instruments
Without lawful
authority or excuse
Has in his
possession
Any instrument
capable of being
used for taking or
converting
```
Any vehicle
OR
Any Ship
OR
Any aircraft
```
With intent to use
for such a purpose
95
Penalty for Unlawfully getting into OR upon
2 years’ imprisonment
| Crimes Act 1961, section 226 (2)
96
Penalty for Possession of instruments
1 year’s imprisonment
| Crimes Act 1961, section 227
97
"Unlawful
| interference"
Touching or dealing with a vehicle in any way without the permission of the
owner.
Example: Wendy wants to either steal cars or just take property from them.
She is in the car park trying the door handles to see if any are unlocked. She is
observed by store security, who call the police.
98
What is the charge / A person was seen reaching into a partially open car window
and unlocking the door. You could not prove why they wanted to get into the
vehicle – to unlawfully take it or steal property from it.
The correct charge
| would be unlawfully interfering
99
If you found the
offenders had removed the petrol cap from a car and were trying to put a
piece of hose into the petrol tank,
They should be charged with attempted theft because the act was immediate and
proximate to the intended offence and had gone beyond mere preparation.
100
What is the charge / Marty and Rick want a ride home. They break into Harry’s car and
try to hot wire it but they can’t get it going. They are found by Harry, who
holds them until the police arrive.
Charged with Attempted
unlawful taking /
Trying to start a vehicle or get into a vehicle with the intention of taking it,
but before having the opportunity to complete the offence.
101
What is the charge / Wendy wants to either steal cars or just take property from them.
She is in the car park trying the door handles to see if any are unlocked. She is
observed by store security, who call the police.
Charged with Unlawful
interference / Touching or dealing with a vehicle in any way without the permission of the
owner.
102
Wendy is located in a car that has been unlawfully taken. She did not
personally take the vehicle but when she entered it, she knew it was
dishonestly taken.
Charged with Unlawfully
getting into. / Getting into/on someone else’s vehicle in circumstances that don’t show any
other offence.
103
"Unlawful
| interference"
Touching or dealing with a vehicle in any way without the permission of the
owner.
Example: Wendy wants to either steal cars or just take property from them.
She is in the car park trying the door handles to see if any are unlocked. She is
observed by store security, who call the police.
104
What is the charge / A person was seen reaching into a partially open car window
and unlocking the door. You could not prove why they wanted to get into the
vehicle – to unlawfully take it or steal property from it.
The correct charge
| would be unlawfully interfering
105
If you found the
offenders had removed the petrol cap from a car and were trying to put a
piece of hose into the petrol tank,
They should be charged with attempted theft because the act was immediate and
proximate to the intended offence and had gone beyond mere preparation.
106
What is the charge / Marty and Rick want a ride home. They break into Harry’s car and
try to hot wire it but they can’t get it going. They are found by Harry, who
holds them until the police arrive.
Charged with Attempted
unlawful taking /
Trying to start a vehicle or get into a vehicle with the intention of taking it,
but before having the opportunity to complete the offence.
107
What is the charge / Wendy wants to either steal cars or just take property from them.
She is in the car park trying the door handles to see if any are unlocked. She is
observed by store security, who call the police.
Charged with Unlawful
interference / Touching or dealing with a vehicle in any way without the permission of the
owner.
108
Wendy is located in a car that has been unlawfully taken. She did not
personally take the vehicle but when she entered it, she knew it was
dishonestly taken.
Charged with Unlawfully
getting into. / Getting into/on someone else’s vehicle in circumstances that don’t show any
other offence.
109
Elements for Preparing to commit an
| imprisonable offence
Found
In any public place
Behaving in a manner from which it
can be reasonably inferred that the person is
Preparing to commit an
imprisonable offence
110
Penalty for Preparing to commit an
| imprisonable offence
The penalty for this offence is in section 28(2).
• For a first offence, it is a fine not exceeding $2,000.
• For a second or subsequent offence within 12 months, it is three months’
imprisonment or a fine not exceeding $2,000.
Summary Offences Act 1981, section 28
111
Power of arrest for Preparing to commit an
| imprisonable offence
You can arrest without warrant under section 39(1) of the Summary Offences
Act 1981.
112
"Found"
Definition as for peeping or peering
| or unlawfully on property.
113
"public place"
a place that, at any material time, is open to or is being used by the public
114
"Behaving in a manner from which it can be reasonably inferred that the person is"
Carrying out actions from which
the court may infer the intentions
of the offender
115
" an imprisonable offence"
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
116
```
"Previous convictions"
Section 28(3) of the Summary Offences Act 1981 states the following:
```
This is a statutory exception to the rule that the prosecution cannot present
evidence of the defendant’s bad character or previous criminal convictions.
If the offender has previous convictions similar to the type of offence that
they appear to have been preparing to commit, these convictions can be
presented to the court as supporting evidence of the behaviour exhibited
by the offender.
117
Elements for ATTEMPTING TO COMMIT AN OFFENCE
Conspires
With any person
To commit any offence
118
What things do you need to identify as an "attempt"
In each case of attempt, you must prove the identity of the suspect and that
they:
• intended to commit an offence, and
• did, or omitted to do, something to achieve that end.
119
Three conditions that must apply in order for a conviction for an attempt to succeed.
These conditions are discussed below under the headings:
• intent (mens rea)
• act (actus reus)
• proximate.
120
"Proximate an act"
when a person removes a revolver from a pocket
intending to shoot someone, it is justifiable to intervene. Removing the
revolver from the pocket is the antepenultimate act; the penultimate act is
taking aim and the ultimate act is firing.
121
Is there a charge and if so what is it?
Jack intends to steal a purse. He stands in a queue behind the victim. He then
puts his hand into the victim’s handbag in order to take the purse. He
discovers that there is no purse in the bag. He is then apprehended.
It is physically impossible for Jack to commit theft of the purse.
He would be charged with attempted theft.
Physical or factual impossibility is not a defence. Suspects can be convicted
of an attempt to commit an offence that was, in fact, a physical or factual
impossibility for them to commit.
122
Penalty for ATTEMPTING TO COMMIT AN OFFENCE
liable to imprisonment for a term not exceeding 7
| Crimes Act 1961, section 310
123
Examples of offences were attempt is impossible cause in fact the attempt is a completed
* attempting to pervert the course of justice
* attempted sexual violation
* attempted murder
* attempted dishonest using/dishonest taking of documents
* attempted arson.
124
What does 72(1) and 311(1) tell the court.
```
charging the offender with an attempt (section 72) and referring to the attempt
penalty provisions (section 311).
```
125
Example of steps in an offence
At 2 am, the friend arrives at his house and together they drive to the town centre and park in the public car park beside the chemist shop
Action / Offence of possession of burglary instruments
and/or preparing to
commit an imprisonable
offence
126
Example of steps in an offence
| Tries to place a screwdriver into the door jamb beside the lock in order to force door
Penultimate action
127
Example of steps in an offence
| Forces the door open, then enters the building in order to steal drugs
Ultimate action
128
Example of steps in an offence
| Thinks about how he might get drugs and dreams of stealing some and getting a high
Intention / No offence
129
Example of steps in an offence
Has a meeting with a friend at his house and together they arrange to burgle a local chemist shop the next
day
Conspiring / Offence of conspiracy
130
Example of steps in an offence
| Goes to his garage and collects tools and equipment and places them in the boot of his car
Preparation / No offence
131
Example of steps in an offence
At 2 am, the friend arrives at his house and together they drive to the town centre and park in the public car park beside the chemist shop
```
Action / Offence of possession of
burglary instruments
and/or preparing to
commit an imprisonable
offence
```
132
Elements of Wilful Damage
Property
Summary Offences Act 1981 Section 11(1)(a)
Intentionally
Damages
Property
133
"Abets"
Encourages or assists
| Example: A gives B a stick to hit C
134
Penalty for Wilful Damage
| Property / Any tree or vegetation
3 months imprisonment/$2,000 fine
135
"Counsels
Gives advice, instigates or plans
Example: (R v Baker) Baker wrote a letter to a friend telling him how to blow a safe. Baker was convicted of actually blowing
the safe
136
"Procures"
Obtains, acquires or brings about
| Example: A wants a stereo from Deka. He asks B to steal it forhim
137
"common intention"
Two or more people formulate a plan; all agree to carry out the plan
138
Elements of Wilful Damage
| Summary Offences Act 1981 Section 11(1)(a)
Intentionally
Damages
Property
139
Elements of Wilful Damage
Any tree or vegetation
Summary Offences Act 1981 Section 11(1)(b)
Intentionally
Sets fire to
Any tree or vegetation
140
Penalty for Wilful Damage
| Property / Any tree or vegetation
3 months imprisonment/$2,000 fine
141
"Intentionally"
A deliberate act, without lawful justification, excuse or claim of right.
142
"recklessly"
A reckless act [where the possible consequences are foreseen but continues the act regardless of the risk], without lawful justification, excuse or claim of right.
143
"Property"
Something that belongs to another person and is capable of being damaged.
144
"Damages"
Temporary or permanent reduction in the value and/or
| usefulness of the property.
145
Penalty for 11A Graffiti
vandalism,
tagging,
defacing, etc.
community-based sentence or a fine not exceeding $2,000, or to both,
146
Penalty for 11B Possession
of graffiti
implements
sentence of community work or a fine not exceeding
| $500, or both.
147
Time frame for prosecutions to be commenced for Wilful Damage charges under the summary offences act 1981
prosecutions be
| commenced within six months
148
Time frame for prosecutions to be commenced for more serious case of intentional damage under the crimes act 1961
the Crimes Act sets no time limit for commencing proceedings.
149
Elements for 11A Graffiti
| vandalism, tagging, defacing, etc
• without lawful authority; and
• without the consent of the occupier or owner or other person in lawful
control
150
‘Public place’ means:
```
>A place that at any material
time
>Is open to, or being used by
the public
>Whether free or on payment
of a charge
>And whether any owner or
occupier of the place is
lawfully entitled to exclude or
eject that person from that
place..
>And includes any:
• Aircraft
• Hovercraft
• Ship
• Ferry
• Other vessel
• Train
• Vehicle......
>That is carrying or available
to carry passengers for
reward
>And includes the interior of
any vehicle which is in a public
place.
```
151
Elements of Fighting in a public place
Fights
| In a public place
152
Penalty for Fighting in a public place
$1000 fine
| Summary Offences Act 1981, section 7
153
Elements for Offensive OR Disorderly Behaviour
```
In a public place
OR
Within view of a
public place
Behaves in an
offensive manner
OR
Behaves in a
disorderly manner
```
154
Penalty for Offensive OR Disorderly Behaviour
$1000 fine
| Summary Offences Act 1981, section 4(1)(a)
155
Is the charge Offensive / not offensive / disorderly behaviour?
Gardening and mowing the lawns naked when the person can be seen by
neighbours, especially children
Offensive behaviour
156
Is the charge Offensive / not offensive / disorderly behaviour?
Running naked in a wooded area of a bike park, at 8.30am on a week day,
with little chance of being seen by children
not offensive
157
Elements for Resisting Police
```
Resists
OR
>Incites or encourages any
other person to resist
>Any constable or
authorised officer or
prison officer or traffic
officer acting in the
execution of their duty
```
158
Is the charge Offensive / not offensive / disorderly behaviour / Not disorderly behaviour?
A few minutes of shouting and swearing at 9.00pm in a residential area
Not disorderly behaviour
159
Whats the charge Drunken person urinates against
a tree in a car park; seen by
someone
Urinates in a public
| place
160
Whats the charge Drunken person stands in the
middle of the road and urinates
in front of people
Offensive behaviour
161
"Fighting"
Fighting is punching, striking, mauling, wrestling, etc, between
two or more willing participants
162
"In a public place"
A place that, at any material time, is open to or is being used
by the public, whether free or on payment of a charge, and
whether any owner or occupier of the place is lawfully
entitled to exclude or eject any person from that place; and
includes any aircraft, hovercraft, ship or ferry or other vessel,
train, or vehicle carrying or available to carry passengers for
reward. Also includes the interior of a vehicle that is in a
public place
163
Elements for obstruction (Resisting Police)
```
Intentionally obstructs
OR
>Incites or encourages any
other person to obstruct
>Any constable or
authorised officer or prison
officer or traffic officer
acting in the execution of
their duty
```
164
Penalty for Resisting Police / obstruction (Resisting Police)
The penalty for this offence is a term of imprisonment not exceeding three
months or a fine of $2000.
Section 23(a), (b) and (c) of the Summary Offences Act 1981
165
"Resists"
Resists requires some degree of force by the offender, for example having a
physical reaction to being arrested.
166
"Intentionally obstruct"
Deliberately making it more difficult for a person to carry out their duties.
167
"Incites or encourages any
| other person to obstruct"
Urge or persuade any other person to make it more difficult for the person to carry out their duties.
168
"acting in the execution of
| their duty"
The person must have been lawfully exercising their powers.
