Receiving

Question 1

Legislation

Answer 1

S246(1)

• receives
• 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.

Question 2

Punishment

Answer 2

a) exceeds $1,000, to imprisonment for a term not exceeding 7 years:
(b) exceeds $500 but does not exceed the sum of $1,000, to imprisonment for a term not exceeding 1 year:
(c) does not exceed $500, to imprisonment for a term not exceeding 3 months

Question 3

The act of receiving requires the satisfaction of three elements:

Answer 3

• 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 (you cannot 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.

Note: No need to prove dishonestly - only knowledge or recklessness as to its being stolen

Question 4

“Receiving” - Definition

Answer 4

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

Question 5

Possession - CASE LAW

Answer 5

R v Cox
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

Question 6

Possession for receiving - CASE LAW (elements)

Answer 6

Cullen v R

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; and
(d) an intention to exercise that control over the item.

Question 7

Control over property - What must the prosecution prove

Answer 7

The prosecution must prove the receiver:

Arranged for the property to be delivered there, or intentionally exercised control over it.

Question 8

Assisting in disposal or concealment - What must the prosecution prove

Answer 8

The Crown must prove both actual assistance and guilty knowledge.

Question 9

The offence must be legally possible - Case Law

Answer 9

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.

Question 10

Property Received - CASE LAW

Answer 10

R v Lucinsky

The property received must be the property stolen or illegally obtained, and not some other item which the illegally obtained property had been exchanged for or which are the proceeds.

Question 11

Property Defintion

Answer 11

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, and any other right or interest

Question 12

Theft, stealing or taking - Meaning

Answer 12

Theft, stealing or taking:

“For tangible property, theft is committed by a taking when the offender moves the property
or causes it to be moved”

Note: Proof may be direct or circumstantial.