Receiving 1 Flashcards
Receiving
S246, Crimes Act 1961
(1) Every one is guilty of receiving who receives any property stolen or obtained by any other imprisonable offence, knowing that property to have been stolen or so obtained, or being reckless as to whether or not the property had been stolen or so obtained.
(2) Property obtained by any act committed outside which would be an offence if committed in NZ is, subject to (5) regarded as obtained by an imprisonable offence.
(3) The ACT of receiving 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.
(4) If:
(a) any property stolen/obtained has been RETURNED to OWNER; or
(b) LEGAL TITLE to any such property has been acquired by any person -
a subsequent receiving of it is not an offence, even though the receiver may know that the property had previously been stolen/obtained.
(5) If a person is charged under S 246 and the property was obtained via an act outside NZ, it is presumed that the act was offence under the law of the place/country where the act was done.
Punishment
S 247
(a) Value over $1,000? - 7 years
(b) Value $501 - $1,000? - 1 year
(c) $500 or less? - 3 months
Elements
-Act of Receiving
-Any property stolen,
Or
-Obtained by any other imprisonable offence
-Knowing that at the time of receiving the property that it had been stolen or obtained by any other imprisonable offence
Or
-Being reckless as to whether or not the property had been stolen or so obtained.
“Act of Receiving”
3 elements
Need to prove dishonesty?
- There must be PROPERTY which has been STOLEN or has been OBTAINED by an IMPRISONABLE OFFENCE.
- The defendant must have “RECEIVED” that property, which requires that the receiving must be FROM ANOTHER (can’t receive from yourself).
- The defendant must receive that property in the KNOWLEDGE that it has been STOLEN or ILLEGALLY OBTAINED or BEING RECKLESS as to that possibility.
Usually no need to prove dishonesty. The only mental element required is proof of knowledge or recklessness as to the property having been stolen. May be exceptions.
When is the act complete?
S 246(3)
The ACT of receiving 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.
If there is guilty knowledge at that point, the offence of receiving will be complete.
Not necessary to take personal physical possession.
R v Cox
Possession
Possession involves two elements. The first, the physical element, is ACTUAL or POTENTIAL PHYSICAL CUSTODY or CONTROL.
The second, the mental element, is a combination of knowledge and intention. KNOWLEDGE in the sense of an AWARENESS by the accused that the substance is in his possession and an INTENTION to EXERCISE POSSESSION.
Cullen v R
Possession for Receiving (4 elements)
There are four elements of possession for receiving:
(a) awareness that the item is where it is
(b) awareness that the item has been stolen
(c) actual or potential control of the item
(d) an intention to exercise that control over the item
Where one or more is lacking or incompletely present, it has to be decided whether the given approximation is such that possession may be held sufficiently established to satisfy the relevant rule of law.
Property is located at a place controlled by the receiver?
Property in possession of receiver’s agent/servant?
Prosecution must prove the receiver arranged for the property to be delivered there, or that on discovering the property, he/she intentionally exercised control over it. Intent to possess the property must also be satisfied.
Control may still be exercised by the receiver if in possession of servant/agent (includes innocent agent). Exercise of such control must be intentional.
Assisting in disposal or concealment.
Must prove? (2)
Actual assistance
Guilty knowledge
Acting as an intermediary or assisting in the sale of property for a share of the proceeds is sufficient.
R v Donnelly
“Where stolen property has been returned to the owner or legal title to any such property has been acquired by any person, it is not an offence to subsequently receive it, even though the receiver may know that the property had previously been stolen or dishonestly obtained.”
Property
S 2, Crimes Act 1961
Property includes real and personal property
and any estate or interest in any real and personal property,
money,
electricity
and any debt
and anything in action
any other right or interest.
Includes tangible and intangible property. Property must have been stolen or obtained by an imprisonable offence.
R v Lucinsky
“The property received must be the property stolen or illegally obtained (or part thereof) and not some other item for which the illegally obtained property had been exchanged or which are the proceeds.”
