Receiving

Question 1

What are the element of receiving, s246?

Answer 1

Receiving s246

• 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 has been stolen or so obtained.

Question 2

What is the punishment for Receiving?

Answer 2

• 7 Years for property valued over $1,000.
• 1 year for property valued $500 to $1,000.
• 3 months if the property does not exceed $500.

Question 3

What three elements must be satisfied for the act of receiving?

Answer 3

The act of receiving requires the satisfaction of three elements:

• There must be property which has been stolen or have 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 is has been stolen or illegally obtained, or being reckless as to that possibility.

Question 4

When is receiving complete?

Answer 4

The act of receiving stolen property 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.

And has guilty knowledge at the time of the act, mes rea.

Question 5

What was held in R v Cox?

Possession

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

What was held in Cullen v R?

Elements of possession

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 custody or control
d) An intention to exercise that control over the item.

Question 7

What was held in R v Donnelly?

Legal title

Answer 7

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 8

Define property s2, CA61?

Answer 8

S2, CA61
Property
Property includes any 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 9

What was held in R v Lucinsky?

Property stolen

Answer 9

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 10

What was held in R v Kennedy?

Guilty knowledge

Answer 10

R v Kennedy

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

Question 11

What was held in R v Harney?

Recklessness

Answer 11

R v Harney
Recklessness means the concious and deliberate taking of an unjustified risk. In NZ it involves proof that the consequence complained of could well happen, together with an intention to continue the course regardless of the risk

Question 12

Give examples of circumstantial evidence of guilty knowledge?

Answer 12

The circumstances commonly relied on as evidence of guilty knowledge on the part of the receiver can often be demonstrated circumstantially, for example, by:

• Possession of recently stolen property.
• Nature of the property, type, value, quality.
• Purchase at gross under value.
• Secrecy in receiving the property.
• receipt of goods at an unusual place.
• receipt of goods at an unusual time.
• Receipt of goods in an unusual way.
• Concealment of property to avoid discovery.
• Removal of identifying marks to avoid discovery.
• Steps taken to disguise property, altering serial number etc.
• Lack of original packaging.
• Type of person goods received from.
• Mode of payment.
• Absence of receipt where receipt would usually be issued.
• False statment as to source of goods.
• False statement as to the date of acquisition.
• Nature of explanation given, eg false or inconsistent or no reasonable explanation.
• False denial of knowledge, existence etc.

Question 13

What is the doctrine of recent possession?

Answer 13

The doctrine of recent possession applies to receiving as well as to theft.

It is the presumption that, where the defendant acquired possession willingly, the proof of possession by the defendant of property recently stolen is, in the absence of a satisfactory explanation, evidence to justify a belief and finding that the possessor is either the thief or the receiver, or has committed some other offence as associated with the theft of the property, eg burg or rob.

This doctrine applies only in cases where the defendant is found in possession of the property recently stolen or obtained dishonestly.

Question 14

How can a victim avoid the title of property obtained by deception?

Answer 14

To avoid title the person deceived must:

• Communicate directly with the deceiver, or
• Take all reasonable steps possible to bring it to the notice of the deceiver, or
• Advise Police of the circumstances of the deception.