RECIEVING - Ingredients => Definitions

Question 1

Receives

Answer 1

Receiving - Section 246(3), Crimes Act 1961

The act of receiving any property stolen or obtained by another crime 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 the concealing or disposing of the property.

Possession

Possession may be actual or constructive.

Actual Possession

Actual possession arises where the thing in question is in a person’s physical custody; it is on or about their person, or immediately at hand.

WARNER v METROPOLITION POLICE COMMISSIONER

The term “possession” must be given a sensible and reasonable meaning in its context. Ideally, a possessor of a thing has:

• Complete physical control over it
• Knowledge of its existence, its situation and its qualities

Constructive Possession

Constructive possession arises when something is not in a person’s physical custody, but they have ready access to it or can exercise control over it.

Constructive:

SULLIVAN V EARL OF CAITHNESS

“[Possession includes} not merely those who have physical custody of firearms … but also those who have firearms under their control at their behest, even though for one reason or another they may be kept at [another location].”

R v DONNELLY

Attempted receiving – Found not guilty because the property which he intended to receive had been restored to the owner. ‘Legally possible’.

RTS

Question 2

Any property

Answer 2

Property - Section 2, Crimes Act 1961

Includes any real or personal property. Any estate or interest in any real or personal property. Anything in action. Any other right of interest.

R v LUCINSKY

Property received must be property stolen or obtained by a crime. The property or part of it.

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Question 3

Stolen
OR
Obtained by any other imprisonable offence

Answer 3

Stolen - Sec.219(1), Crime Act 1961

Dishonestly and without claim of right, taking any property with intent to deprive any owner permanently of that property or of any interest in that property.

OR

Obtains - Sec. 217, Crimes Act 1961

Means obtains or retains for himself or herself or for any other person.

An imprisonable offence

Normal meaning – any offence punishable by a term of imprisonment

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Question 4

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

Answer 4

Simester and Brookbanks: Principals of Criminal Law

Knowing means “correctly believing” … the defendant may believe something wrongly, but cannot “know” something that is false.

R v KENNEDY

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

Property:

Refer .2

OR

Recklessness

Consciously and deliberately taking an unjustifiable risk.

R v HARNEY

Recklessness involves foresight of dangerous consequences that could well happen together with an intention to continue the course of conduct regardless of the risk.

Value of the property

The property value is essential to the sentence as per section 247, CA 1961.

RTS