Robbery

Question 1

Robbery - section and penalty

Answer 1

CA61; S234(1)

10 Years imprisonment

Question 2

Robbery - Elements

Answer 2

1. Theft
2. Accompanied by violence OR accompanied by threats of violence
3. To any person or property
4. Used to extort the property stolen OR prevent or overcome resistance to its being stolen

Question 3

Theft

Act/Section/Penalty/Elements

Answer 3

CA61; S219(1)(a)
3 months to 7 years imprisonment

1. Dishonestly
2. And without claim of right
3. Takes
4. Any property
5. With intent to deprive any owner permanently of that property or of any interest in that property.

OR 219(1)(b) - uses or deals with property after obtaining possession or control over the property in whatever manner.

Question 4

R v Skivington

Answer 4

“Larceny (or theft) is an element of robbery, and if the honest belief that a man has a claim of right is a defence to larceny, then it negatives one of the elements in the offence of robbery, without proof of which the full offence is not made out.”

Question 5

Property

Answer 5

CA61; S2

Property includes real and personal property, and any estate or interest in any real or personal property, electricity, money, debt, and anything in action, and any other right or interest.

Question 6

R v Lapier

Answer 6

Robbery is complete the instant the property is taken, even if possession by the thief is only momentary.

Question 7

Actual Possession

Answer 7

Actual possession arises when the thing in question is in a person’s physical custody or immediately at hand.

Question 8

R v Cox

Answer 8

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 9

Potential Possession

Answer 9

Potential possession arises when the person has the potential to have the thing in question in their control.

Question 10

R v Maihi

Answer 10

It is implicit in ‘accompany’ that there must be a nexus (connection or link) between the act of stealing … and a threat of violence. Both must be present.”

However the term “does not require that the act of stealing and the threat of violence be contemporaneous …”

A threat made with the necessary intent may have a continuing effect that is still operating on the victim’s mind some time later when the goods are eventually handed over.

Question 11

Peneha v Police

Answer 11

It is sufficient that the actions of the defendant forcibly interfere with personal freedom of the victim, or amount to forcible powerful or violent action or motion producing a very marked or powerful effect tending to cause bodily injury or discomfort.

Question 12

Threats of Violence - R v Broughton

Answer 12

A threat of violence is “the manifestation of an intention to inflict violence unless the money or property be handed over. The threat may be direct or veiled. It may be conveyed by words or conduct, or a combination of both.”

Question 13

Used to Extort the Property Stolen

Answer 13

It must be proved that the purpose of the violence or threats was to extort the property stolen, or to prevent or overcome resistance to its being stolen.

Question 14

Prevent or overcome resistance to its being stolen

Answer 14

Prevent: to keep from happening.

Overcome: to defeat; to prevail over; to get the better of in a conflict.

This will apply when the victim is resisting and the offender uses violence or threats to overpower and subde the victim.

Question 15

Dishonestly

Answer 15

CA61; S217

Acting without a belief that there was express or implied consent from a person entitled to give such consent or authority.

It is a state of mind, and the fact that the defendant acted without the requisite belif, and therefore dishonestly, may be inferred from the circumstances.

Question 16

What are some ways that a defendant can raise a reasonable doubt on the basis of a relevant but mistaken belief?

Answer 16

• That the act or omission was, expressly or impliedly, consented to by a person entitled to give consent, or
• That the act or omission was authorised by a person entitled to authorise it.

The question is whether the belief is actually held, not whether that belief is reasonable.

Question 17

Claim of right

Answer 17

A belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.

Question 18

Break down the definition of ‘claim of right’

Answer 18

1. The belief must be a belief in a proprietary or possessory right in property.
2. The belief must be about rights to the ‘property in relation to which the offence is alleged to have been committed.
3. The belief must be held at the time of the conduct alleged to constitute the offence.
4. The belief must actually be held by the defendant.

Question 19

What is a defence to robbery?

Answer 19

If the Court is satisfied that the defendant acted with claim of right, he is entitled to an acquittal on a charge of theft. Therefore, as theft is an essential element of robbery, claim of right is also a defence to robbery.

Question 20

Simester and Brookbanks - Offender liable for other offences

Answer 20

A belief in a legal right to take X is a defence to any charge alleging an intent to steal X, because the necessary intent is not present. However, that belief does not entitle a person to steal Y in order to get X and a belief in a right to X does not prove as such or imply an additional belief of right to take Y.

Question 21

Takes

Answer 21

When the offender moves the property or causes it to be moved.

Question 22

R v Peat

Answer 22

The immediate return of the property will not purge the offence:

“ … as the prisoner had in fact demanded his money, and under the impulse of that threat and demand the property had once been taken … it was in strictness of law a sufficient taking to complete the offence, although the prisoner’s possession had continued for an instant only.”

Question 23

Using or dealing with

Answer 23

“Using or dealing with” property requires that the defendant acted contrary to any authority or consent given by the owner, or that their conduct in relation to the property was inconsistent with the rights of the owner.

Question 24

Control

Answer 24

To exercise authoritative or dominating influence over it.

Question 25

Intent to deprive the owner permanently

Answer 25

CA61; S219(2)

An intent to deprive any owner permanently of property includes an intent to deal with property in such a manner that—

(a) the property cannot be returned to any owner in the same condition; or
(b) any owner is likely to be permanently deprived of the property or of any interest in the property.

Question 26

Intent

Answer 26

There are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.

Case law: R v Collister

Question 27

Ownership

Answer 27

CA61; S218(1)

A person is to be regarded as the owner of any property that is stolen if, at the time of the theft, that person has—

(a) possession or control of the property; or
(b) any interest in the property; or
(c) the right to take possession or control of the property.

Question 28

Accompanied by

Answer 28

The prosecution must prove a connection between the threats or violence and the stealing of the property

Question 29

R v Mitchell - Accompanied by

Answer 29

There may be occasions where property is handed over to a thief as a result of threats previously made but still operating on the mind of the victim at the time … the question will be one of fact and degree in each case.

Question 30

Violence

Answer 30

Violence must involve more than a minimal degree of force and more than a technical assault, but need not involve the infliction of bodily injury.

Whether or not the degree of violence used is sufficient to amount to robbery is a matter of fact for determination in each case.

Question 31

Referencing Broughton, list circumstances that should be considered in determining whether a threat of violence can be substantiated.

Answer 31

• The relative AGE of the parties
• Their respective PHYSIQUES
• Their APPEARANCE
• Their DEMEANOUR
• What was SAID and done by those involved
• The manner and SETTING in which the incident took place

Question 32

R v Pacholko - effect on the victim relevant in determining whether or not the defendant’s conduct was threatening

Answer 32

The actual presence or absence of fear on the part of the complainant is not the yardstick. It is the conduct of the accused which has to be assessed rather than the strength and nerves of the person threatened.

Question 33

Any person

Answer 33

Violence may be directed at anyone not just the victim of theft.

Question 34

R v Macro - Extort

Answer 34

If the victim knows that the Police are ready to step in and prevent the actual infliction of harm and is therefore unaffected by threats made by the accused, there will be no robbery.

Question 35

R v Newall - used to extort the property stolen

Answer 35

The theft was complete when the appellant exited the store. The violence cannot be said to be to overcome resistance to the theft.

Question 36

Aggravated robbery - causes GBH: section and penalty

Answer 36

CA61; S235(a)

14 years imprisonment

Question 37

Aggravated robbery - causes GBH:

Elements

Answer 37

1) Robs any person; and
2) At the time of OR immediately before OR immediately after the robbery
3) Causes GBH to any person

Question 38

At the time of

Answer 38

During the commission of the theft, at the time of the taking with the required intent.

Question 39

Causes GBH

Answer 39

A person causes GBH if his or her actions make him or her criminally responsible for it.

Question 40

Grievous Bodily Harm

Answer 40

Harm that is really serious -

DPP v Smith: “Bodily harm” needs no explanation and “grievous” means no more and no less than “really serious”.

Question 41

Aggravated robbery - together with: elements

Answer 41

1) Being together with any other person or persons
2) Robs
3) Any Person

Question 42

Aggravated robbery - being together with: section and penalty

Answer 42

CA61; S235(b)

14 years imprisonment

Question 43

Being Together With

Answer 43

There must be proof that, in committing the robbery, the defendant was part of a joint enterprise by two or more persons who were physically present at the robbery.

Question 44

Physical proximity - R v Joyce

Answer 44

The term “together with” requires that two or more people are actually present and acting together in the commission of the robbery.

R v Joyce: “The Crown must establish that at least two persons were physically present at the time the robbery was committed or the assault occurred.”

Question 45

R v Joyce

Answer 45

“The Crown must establish that at least two persons were physically present at the time the robbery was committed or the assault occurred.”

Question 46

Joint enterprise

Answer 46

Mere presence during the commission of the robbery, without active participation, is not sufficient; the provision applies only to cases where the forces of two or more people acting together are deployed against the victim in the actual commission of the offence.

R v Galey: “Being together” in the context of S235(b) involves “two or more persons having the common intention to use their combined force, either in any event or as circumstances might require, directly in the perpetration of the crime.”

Question 47

R v Galey

Answer 47

“Being together” in the context of S235(b) involves “two or more persons having the common intention to use their combined force, either in any event or as circumstances might require, directly in the perpetration of the crime.”

Question 48

Aggravated robbery - being armed with any weapon: section and penalty

Answer 48

CA61; S235(c)

14 years imprisonment

Question 49

Aggravated robbery - being armed with any weapon or instrument:

Elements

Answer 49

1) Being armed with any offensive weapon OR instrument OR any thing appearing to be such a weapon or instrument
2) Robs
3) Any other person

Question 50

Being Armed

Answer 50

The defendant is carrying the item or has it available for immediate use as a weapon.

Question 51

Offensive Weapon

Answer 51

CA61; S202A(1):

Any article made or altered for use for causing bodily injury, or intended by the person having it with him for such a use.

Question 52

Instrument

Answer 52

Any item intended to be used as a weapon or to intimidate and overbear the victim’s will to resist.

Question 53

Anything appearing to be such a weapon or instrument

Answer 53

It must be proved both that the object appeared to be an offensive weapon or instrument to the victim and that the defendant intended or was at least reckless as to the possibility that it would be perceived as a weapon.

Question 54

What definitions and/or case laws should be included in your discussion of the liability of:

• Robbery - 234(1); 235(a-c); 236(1)(a-c)

Answer 54

Definition of robbery: Theft / accompanied by violence or accompanied by threats of violence / to any person or property / used to extort the property stolen or to prevent or overcome any resistance to its being stolen;

Definition of theft: Dishonestly / without claim of right / takes / any property / with intent to deprive any owner permanently of that property or of any interest in that property;

Definition of dishonestly: acting without a belief that there was express or implied consent from a person entitled to give such consent or authority;

Definition of without claim of right: a belief at the time of the act etc … ; R v Skivington;

Definition of takes: when the offender moves the property or causes it to be moved; R v Lapier; R v Cox - possession; control - to exercise authoritative or dominating influence over it.

Definition of property: real and personal property etc … ;

Definition of intent: to deprive any owner permanently of that property: an intent to deal with property etc …;

Definition of ownership: a person is to be regarded as the owner of any property etc …;

Definition of accompanied by violence or threats of violence: violence - must involve more than the minimal degree of force etc … ; R v Maihi; R v Broughton; R v Pacholko; R v Mitchell;

Definition of used to extort the property stolen: it must be proved that the purpose of the violence or threats was to extort the property stolen, or to prevent or overcome resistance to its being stolen; R v Macro; R v Newall

Definition of prevent or overcome resistance to its being stolen: prevent -to keep from happening;overcome - to defeat; to prevail over; to get the better of in a conflict;

Definition of intent: 2 types; Collister

Aggravated robbery (causes GBH): causes GBH - a person causes GBH if their actions make them criminally responsible for it; GBH - harm that is really serious; DPP v Smith; at the time of - at the time of the taking with the required intent;

Aggravated robbery (together with): being together with - there must be proof that, in committing the robbery, the defendant was part of a joint enterprise by two or more persons who were physically present at the robbery; R v Joyce; R v Galey;

Aggravated robbery (offensive weapon): being armed - the defendant is carrying the item or has it available for immediate use as a weapon; offensive weapon - CA61; S202A(1); instrument - Any item intended to be used as a weapon or to intimidate and overbear the victim’s will to resist; anything appearing to be such a weapon or instrument - It must be proved both that the object appeared to be an offensive weapon or instrument to the victim and that the defendant intended or was at least reckless as to the possibility that it would be perceived as a weapon