Property Offences Other Than Theft Flashcards
Property offences:
•Theft offences
•Obtaining by deception
•Robbery
•Burglary
•Blackmail
Plug gaps in law of theft
•Theft offences
•Obtaining by deception
•Robbery
•Burglary
•Blackmail
Obtaining by deception:
•Section 228: Dishonestly taking or using a document: Max 7 years
•Covers situations that are not theft because the defendant did not take or deal with property belonging to someone else. Or where they do commit theft but the value of what they have stolen is minimal – they are planning to use it to obtain something of greater value.
•Section 240: Obtaining by deception or causing loss by deception: punishment set according to the value of the advantage gained or loss caused
•Covers situations that are not theft because the financial benefits gained do not fall within the definition of property. Or because the consent of the owner was obtained – but fraudulently.
Obtaining by deception → dishonestly using or dealing with document
Document definition is broad → can include computers and smartphones
Consolidates offences into general → criminalises things that are not theft.
Only Fundamental mistake vitiates consent so use s240.
Section 228:
(1) Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration,—
(a) dishonestly and without claim of right, takes or obtains any document; or
(b) dishonestly and without claim of right, uses or attempts to use any document.
(2) Every person is liable to imprisonment for a term not exceeding 3 years who, without reasonable excuse, sells, transfers, or otherwise makes available any document knowing that—
(a) the document was, dishonestly and without claim of right, taken, obtained, or used; and
(b) the document was dealt with in the manner specified in paragraph (a) with intent to obtain any property, service, pecuniary advantage, or valuable consideration.
Section 228(1):
•Actus reus
•the item is a document;
•the defendant must take, obtain, use or attempt to use the document.
•Mens rea
•the defendant must intend to obtain any property, service, pecuniary advantage or valuable consideration;
•be dishonest;
•have no claim of right.
Section 240: Obtaining by deception:
(1) Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right, -
•(a) obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or
•(b) by incurring any debt or liability, obtains credit; or
•(c) induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or
•(d) Causes loss to any other person.
Section 240:
Actus reus
•The defendant engages in deception (through several possible means);
•The deception causes one of a wide range of advantages or losses.
Mens rea (at the time of the deception)
•Intention that another person should be deceived;
•No claim of right;
•If the defendant’s deception is a false representation, then they must have known or been reckless as to the falsity of a material aspect of that representation.
Section 240(2) “Deception” means- 👍
(a) a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and –
knows that it is false in a material particular; or
is reckless as to whether it is false in a material particular; or
(b) an omission to disclose a material particular, with intent to deceive any person in circumstances where there is a duty to disclose it; or
(c) a fraudulent device, trick, or stratagem used with intent to deceive any person.
Deception:
False representation:
•Representation may be express or implied: Morley v R [2009] NZCA 618.
•It must be capable of being false: Carlos v R [2010] NZCA 248.
•It can be indirect – eg passed on through a third party: : Morley v R [2009] NZCA 618.
•An omission to disclose a material particular:
•Fiduciary relationships might carry obligations to make disclosures in certain circumstances: R v Chen [2019] NZCA 299.
•A device, trick or strategem
Excellent car for example → not false representation
Morely → repeating what the property owner has said to him → so false representation by property owner.
Causation: Deception must be an operative and material inducement:
Victim suspects that an application for a licence contains lies but does not have enough proof to justify refusing the license. However, grants it for a shorter period in order to investigate the suspicion: O’Brien v R [2019] NZCA 83
Defendant booked furniture removals and gave a false name to avoid paying afterwards: Hunter v Police [2014] NZHC 2975
Can automated machines (eg cash ATM machines or electronic ticket gates) be deceived? R v Xu [2018] NZHC 1433
Deception must cause benefit or loss → has to be false about something that counts (material particular) → because they cared about this particular fact.
Has to have caused → operative or material inducement → does not have to be the only cause → as long as it is a material cause.
For example if victim has a suspicion that they are being lied to → but no proof –> deception still has played role → deception has then caused the benefit the individual got from the application.
That is true even if person thinks they are being tricked → if they give time to check out → then still a cause.
Hunter v police → furniture removal, but gave a false name because does not want to prove → false name was found not to be false representation → because even if gave actual name would still cause loss → just taking names and booking the service → victim was acting without reference → would have provided it anyway.
Cash and ATM machines can never be deceived → because they have done exactly what they are programmed to do → cant be subject to section 240.
False representation has not caused the relevant outcome therefore
Relevant outcomes:
•Obtaining ownership, possession of, or control over, any property, privilege, service, pecuniary advantage, benefit or valuable consideration, directly or indirectly
•Is something a pecuniary advantage only if you are not entitled to it? Ruka v DSW [1997] 1 NZLR 154, but overturned on this point in R v Hayes [2008] NZSC 3.
•Li v R [2016] NZCA 237 – a benefit is a “good” or an “advantage”.
Broad relevant outcomes.
Relevant outcomes continued…
•In incurring any debt or liability, obtaining credit
•Chen v R [2019] NZCA 299 – the defendant does not have to personally incur a debt or liability
•Causing a person to deliver over, execute, make, accept, endorse, destroy or alter any document or thing capable of being used to derive a pecuniary advantage
•Causing loss
•R v Morley [2009] NZCA 618
•R v Cai [2011] NZCA 604 – temporary loss sufficient
Causing a loss is tricky → in the case of morley borrowed money that couldnt repay → and sold property and sold for less → enter agreement for other property.
Court said loss that they incurred was a loss caused by persons perception but loss of profits that they made → expectations were not a loss caused by deception → Thought they had a great deal but was not.
R v Cai → temporary loss is sufficient → In CAi → defendant accessed customers profile, changed password and put $80,000 into another persons account → bank reversed the transaction and put it back.
They had a right to get indemnity from the bank to get $80,000 → the funds in a persons account were a chosen action → have a agreement with bank.
When the transfer went out → the defendant no longer could use funds and at that point suffered a loss → for that time they could not get that $80,000, even though temporary still a loss.
Section 249: Accessing Computer system for dishonest purpose:
(1) directly or indirectly accesses any computer system and thereby, dishonestly and by deception, and without claim of right, -
(a) obtains any property, privilege, service, pecuniary advantage, benefit or valuable consideration; or
(b) causes loss to any other person
Accessing computer system
Actus reus
•Accesses a computer system;
•May/may not practice a deception;
•Either the access or the deception causes them to obtain property, a privilege, service, pecuniary advantage, benefit or valuable consideration or causes a loss.
Mens rea
•Intends to access the system;
•Knows they do not have authorization in relation to the benefit or loss or has the mens rea for deception (intends to deceive and, if making a false representation, knows or is reckless about the fact that it is false in a material particular);
•No claim of right.
Can be own computer system → then can do deception → deceptive action on computer system
Then deceptive action causes you to earn pecuniary advantage, or causes loss to someone else.
Intend to access the system and you know you dont have authorisation → or have mens rea for deception and have no claim of right → so very broad provision.
Burt v Police [1991] 2 NZLR 527:
•A farmer had a contract with a couple who were farming his land. Fontarra was splitting the payments for the milk 50/50.
•The farmer sent emails from his own email account to Fonterra asking them to cancel the automatic milk payments and pay 100% of the proceeds to him.
•Are the elements of s 249(1) made out?
Farm owner → leased farm to couple they were providing milk to fonterra, and gave 50% to owner and 50% to milker → dispute between farm owner and couple → so sent email to fonterra cancelling deal that they would pay 50% → he got $80,000 that would otherwise go to them →
Court said → accessed computer system and gained pecuniary advantage for himself → using it for deception or unauthorised action.
Le Roy v Police HC Wellington 2006:
•The defendant used his position as a telecommunications employee to access the email account of his ex-wife.
•She had a protection order against him.
•Are the elements of s 249(1) made out?
Telecom employee → used to access email account of ex wife → secret electronic property which he had no right to access → no financial benefit → but he fraudulently, access to the computer and to the benefit that he got dishonestly from that access.
Section 250: Damaging or interfering with computer system:
Section 250
•(1) 10 years: “intentionally or recklessly destroys, damages or alters any computer system if he or she knows or ought to know that danger to life is likely to result.”
•(2) 7 years for various sorts of damage without the additional requirement of endangering life.
•Section 251. Making, selling, or distributing or possessing software for committing crime.
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•Section 252. Accessing computer system without authorization.
