Receiving

Question 1

Discuss section 246(1)

Answer 1

Everyone is guilty who

• receives
• any property stolen or obtained by any other imprisonable offence (ie decption)
• knowing that at the time of receiving the property had been stolen or obtain by any other imprisonable offence or
• being reckless as to whether or not that property was stolen or obtained

Question 2

Discuss the three elements of the act of receiving

Answer 2

• There must be property which has been stolen or has been obtained by an imprisonable offence
• The defendant must have received the property, which requires that the receiving must be from another person. (You cannot receive property from yourself)
• The defendant must receive that property with the knowledge that it has been stolen or obtained by any other imprisonable offence.

Question 3

When is the act of receiving complete S246(3)

Answer 3

The act of receiving is complete once the offender has, either jointly or exclusively with the thief or any other person, taken possession or control over the property or helps conceal or disposing of it.

Question 4

What sections defines the punishment for the amount of the goods received

Answer 4

Section 247 CA61

(1) over a $1000 = max 7 years
(2) between $500 and $1000 = 1 year
(3) under $500 = 3 months

Question 5

R v COX (Possession)

Answer 5

Possession involves two elements. The first is the physical. The actual or potential physical custody or control. The second is the mental which is a combination of of knowledge and intention. Knowledge in the sense that the accussed was aware that the substance was under his possession with the intention to exercis possession.

Question 6

Cullen v R

Answer 6

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 control over that item.

Question 7

As discussed in the attempts chapter. The offence must be legally possible. Outline R v Donnelly

Answer 7

Where the stolen property has been returned to the owner or legal tilte has been obtained by any person. It is not an offence to subsequently receive it, even though the receiver may know that the property has previously be stolen or dishonestly obtained.

Basicaaly if the property is returned to the owner and then the offender attempts to come into possession of the property knowing it has been previously stolen and not returned to the owner. He cannot be charged with receiving but rather an attempts.

Question 8

What is case law R v Lucinsky

Answer 8

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

IE - if a person steals $100 worth of $20 notes and then passes them onto a knowing receiver, then the person receiving is guilty.

But if the person who originally stole the money goes to the bank and exchanges the notes for different denominations, then the person is knowingly receiving the new notes is not liable of receiving as they are not the original notes.

Question 9

Define the term stolen and quote section

Answer 9

Section 219(4) outlines that theft is committed once the moves the property or causes it to be moved with the intention of depriving the owner permanately of the property.

Question 10

Voidable title?

Answer 10

Title that has been obtained by deception is defines as voidable title. That is the person that has obtain it be deception has title of the property until the victim does the one of the three following:

• Communication with the deceiver
• Taking all reasonable steps to bring it to the receivers attention.
• advising the police of the deception

Question 11

Define title

Answer 11

Is the right or claim of right to the ownership of property.

Question 12

R v Kennedy (knowing the property to be stolen)

Answer 12

The guilty knowledge that the thing has been stolen or dishoneslty obatined must be present at the time of receiving.

Question 13

Define knowing

Answer 13

Means knowing or correctly believing. The defendant may believe something wrongly, but cannot know something to be false.

Question 14

Define Reckless

Answer 14

means the conscious and deliberate taking of an unjustified risk

Question 15

Cameron v R

Answer 15

Recklessness is establised if

(a) the defendant recognised there was a real possiblity that
(i) their actions would bring about the proscribed circumstances
(ii) that the proscribed circumstances existed
(b) having regard for the the risk those actions were unreasonable.

Question 16

List 6 circumstantial things that will assist with proving the defendants guilty knowledge

Answer 16

• Purchase of the property at a gross undervalue
• Concealment of property to avoid discovery
• Possession of recently stolen property
• removal of identifying marks or features
• type of person the goods are received from
• Lack of original packaging

Question 17

Define the doctrine of recent possession

Answer 17

The doctrine of recent possession means that if the defendant took possession of the recently stolen property willingly, and cannot p[rovide a reasonable excuse for the possession then they can be defined as either the theif or the receiver.

Whether possession is recent is dependant on the nature of then property and the surrounding circumstances.

Question 18

Discuss police acting as an agent

Answer 18

It is said that when Police take possession or recover the stolen porperty then the property has been said to have been returned to the rightful owner.

And therefore any further stings with that property to catch the offender will not amount to a charge of receiving,

A way around this, is to delay seizure or merely watch the property until the offender takes possession.

(R v Donnelly is the case law in relation to the property being returned to the owner and defendant can not be found to be guilty of receiving as the title is back with owner)

Question 19

Explain how possession of property can be established in a charge of receiving.

Answer 19

Possession can be established by showing that the property is:
• in the immediate physical custody of the receiver, or
• at a location, over which the receiver has control (such as their place of business or private residence).

Question 20

What is the doctrine of recent possession?

Answer 20

The doctrine of recent possession means that if the defendant took possession of the recently stolen property willingly, and cannot p[rovide a reasonable excuse for the possession then they can be defined as either the theif or the receiver.

Whether possession is recent is dependant on the nature of then property and the surrounding circumstances.

Question 21

What was held in the case of R v Lucinsky as it relates to receiving?

Answer 21

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

IE - if a person steals $100 worth of $20 notes and then passes them onto a knowing receiver, then the person receiving is guilty.

But if the person who originally stole the money goes to the bank and exchanges the notes for different denominations, then the person is knowingly receiving the new notes is not liable of receiving as they are not the original notes

Question 22

When is the act of receiving complete?

Answer 22

The act of receiving is complete once the offender has, either jointly or exclusively with the thief or any other person, taken possession or control over the property or helps conceal or disposing of it.

If there is guilty knowledge at this point the offence is complete