Receiving

Question 1

Receiving

Section 246, Crimes Act 1961

Answer 1

Section 246(1)
Everyone 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

Question 2

Penalty

Section 247, Crimes Act 1961

Answer 2

Every person guilty of receiving is liable as follows:

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

Question 3

Elements - Receiving

Answer 3

Crimes Act 1961, Section 246(1)
- Act of receiving (possession)
- 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 so obtained
or
- being reckless as to whether or not the property had been stolen or so obtained

Question 4

The Act of Receiving

Answer 4

1. There must be property which has been stolen or has been obtained by an imprisonable offence
2. the defendant must have ‘received’ that property, which requires that the receiving must be from another
3. the defendant must receive that property in the knowledge that it has been stolen or illegally obtained or being reckless as to that possibility

Question 5

When the Act is complete
Section 246(3), Crimes Act 1961

Answer 5

. . .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 6

Possession - Case Law

Answer 6

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 7

Possession for Receiving - Case Law

Answer 7

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 8

Assisting in disposal or concealment

Answer 8

Prosecution must prove both actual assistance and guilty knowledge

Question 9

Must be legally possible to commit

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

Receiving Property stolen in the same state

Case Law

Answer 10

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

Question 11

Conviction regarded as conclusive proof

Answer 11

Section 49 Evidence Act 2006 provides that the conviction of an individual is conclusive proof of that person’s guilt.
You are therefore able to rely on the conviction of the thief or obtainer as proof of the offence relating to the property being stolen or obtained.

Question 12

Title

Answer 12

Where property is obtained by deceptive means the offender gains both possession and title.
Title is passed to the offender in these circumstances, as the property is generally handed over to the offender by the owner.

Question 13

Voidable title

Answer 13

Title obtained by deception is referred to as ‘voidable title’. Meaning that the title can be avoided by the seller (complainant)
Until the title is voided, the person committing the deception has title to the property concerned and is able to confer a good title on to anyone who subsequently acquires the property from him in good faith.

Question 14

Avoiding Title

Answer 14

In order to avoid title one of the following must be completed:

• Communicating directly with the deceiver
• Taking all reasonable and possible steps to bring it to the deceivers notice (letter, email)
• Advising police of the circumstances of the deception

Question 15

The Effect of Section 246(4)

Answer 15

By virtue of 246(4) property is no longer deemed stolen it cannot be ‘received’ once that property has been reacquired by the legal owner or where legal title has been acquired by another person.
This includes situations where the receiver is aware that the property has was stolen or obtained by any other imprisonable offence.

Question 16

Knowing that property to have been stolen or so obtained

Case law

Answer 16

R v Kennedy

The guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving

Question 17

Reckless - Case Law

Answer 17

Cameron v R
Recklessness is established if:
a) the defendant recognised that there was a real possibility that:
- his or her actions would bring about the proscribed result and/or
- that the proscribed circumstances existed and
b) having regard to that risk those actions were unreasonable

Question 18

Doctrine of recent possession

Answer 18

The doctrine of recent possession rule allows for proof of theft or receiving by way of circumstantial evidence. In circumstances where a person is found in possession of stolen property reasonably soon after the theft, an inference may be drawn that the person in possession either stole the property or received it from the thief

Question 19

Proceedings against parties to offences, accessories and receivers.
Section 137, Criminal Procedure Act 2011

Answer 19

(2) can be proceeded against and convicted whether principal offender or any other party has been proceeded against
(3) can be alone or jointly
(4) number of receivers (different times and or parts) may be charged with substantive offences and may be tried together