Robbery, Burglary, Receiving

Question 1

Receiving

Penalty

Answer 1

Over $1000 - 7 yrs
$1000 - $500 - 1yr
Under $500 - 3 mths

Question 2

Receiving

R v Lucinsky - Property recieved

Answer 2

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 3

Receiving

R v Donnelly - Legally impossible

Answer 3

R v Donnelly
Where stolen property has been physically recovered by the Police, it is legally impossible to commit the crimes of receiving or attempted receiving in respect of it, although there may be evidence of conspiring to receive property dishonestly obtained.

Question 4

Receiving

When is receiving complete? (s236(3) CA61)

Answer 4

s246(3) CA61
The act of receiving any property stolen or obtained by any other imprisonable offence 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.

Question 5

Receiving
Discuss - Guilty Knowledge
Case law

Answer 5

Guilty Knowledge
The prosecution will, in general terms, rely on inferences from the circumstances to establish that the accused knew the property was stolen or obtained by an imprisonable offence, or was reckless as to that possibility at the time of its receiving.

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

Question 6

Receiving

Define - Property

Answer 6

Property
Section 2, Crimes Act 1961
Property includes 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 7

Receiving

Define - Theft (s219(1) CA61)

Answer 7

Stolen - s219(1), Crimes Act 1961

Theft or stealing is the act of,—
(a) 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

(b) dishonestly and without claim of right, using or dealing with any property with intent to deprive any owner permanently of that property or of any interest in that property after obtaining possession of, or control over, the property in whatever manner.

Question 8

Receiving
Discuss - Possession
Case law
(R v Kennedy, Warner v MPC)

Answer 8

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).

R v Kennedy
The prosecution must prove an intent on the part of the receiver to possess the property.

Warner v Metropolitan Police Commissioner
Ideally, a possessor of a thing has complete physical control over it; he has knowledge of its existence, its situation and its qualities; he has received it from a person who intends to confer possession of it, and he has himself the intention to possess it exclusively of others.
Ideal possession

Question 9

Receiving

Define - Obtains (s217 CA61)

Answer 9

Obtains - s217, Crimes Act 1961

obtain, in relation to any person, means obtain or retain for himself or herself or for any other person.

Question 10

Receiving

Discuss - Value of the property

Answer 10

Value / Penalty
The value of the property received determines the penalty that may be imposed. It is therefore important that the value of the property concerned is included in the charging document. Where the value is unknown or nominal, make reference to s247(c).

Question 11

Receiving

Discuss - Concept of title

Answer 11

Title means ‘a right or claim to the ownership of property’. Title or ownership of a thing is the legal right to possession of that thing.

Where property is obtained by deceptive means the offender gains both possession and title. However the type of title gained by the offender has limitations.

Title is passed to the offender in these circumstances, as the property is generally handed over to the offender by the owner, whereas with theft the property is taken without the consent of the owner and no transfer of title occurs.

Question 12

Blackmail (s237 CA61) - Ingredients

Answer 12

Penalty 14yrs

• threatens
• expressly or by implication
• to make any accusation against any person (whether living or dead)
  OR to disclose something about any person (whether living or dead)
  OR to cause serious damage to property or endanger the safety of any person
• with intent to cause the person to whom the threat is made to act in accordance with the will of the person making the threat
• and to obtain any benefit or to cause loss to any other person

Question 13

Demands with intent (s239 CA61) - Ingredients

Answer 13

s239(1) CA61 - 14 yrs

• without claim of right
• by force or with any threat
• compels any person to execute, make, accept, endorse, alter, or destroy any document capable of conferring a pecuniary advantage with intent to obtain any benefit.

s239(2) CA61 - 14 yrs

• with menaces OR by any threat
• demands any property from any persons
• with intent to steal it.

Question 14

Robbery / Aggravated Robbery

R v Skivington - Theft must exist

Answer 14

R v Skivington
“Larceny [or theft] is an ingredient 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 ingredients in the offence of robbery, without proof of which the full offence is not made out.”

Question 15

Robbery / Aggravated Robbery

R v Lapier - When is robbery complete?

Answer 15

R v Lapier

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

Question 16

Robbery / Aggravated Robbery

R v Maihi - Accompanied by violence

Answer 16

R v Maihi
“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 …”

Question 17

Robbery / Aggravated Robbery

Define - Assault

Answer 17

Assault – s2 Crimes Act 1961
Assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose; and to assault has a corresponding meaning:

Question 18

Robbery / Aggravated Robbery

Define - Property

Answer 18

Property - s2, Crimes Act 1961
property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and any thing in action, and any other right or interest

Question 19

Robbery / Aggravated Robbery
Discuss - Violence
Case law (Peneha v Police)

Answer 19

Violence
In the context of robbery, 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.

Peneha v Police
It is sufficient that “the actions of the defendant forcibly interfere with personal freedom 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 20

Robbery / Aggravated Robbery
Discuss - Threats of Violence
Case law (R v Broughton)

Answer 20

Threat of Violence
“caused the victim to fear that violence would be used if he continued to refuse”

R v Broughton
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 21

Robbery / Aggravated Robbery

Discuss - Extort

Answer 21

Extort
To “extort” means “to obtain by violence, coercion or intimidation or to extract forcibly.” [Oxford Dictionary].

Extortion implies an overbearing of the will of the victim. Thus, if the threats have not in fact affected the will of the victim, there is no robbery.

Question 22

Robbery / Aggravated Robbery

Disuss - Prevent

Answer 22

Prevent
To “prevent” means “to keep from happening”.

This provision applies when the offender anticipates resistance from the victim and uses violence or threats to ensure it does not start.

Question 23

Robbery / Aggravated Robbery

Discuss - Overcome

Answer 23

Overcome
To “overcome” means “to defeat; to prevail over; to get the better of in a conflict.”

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

Question 24

Robbery / Aggravated Robbery

Define - Robs (s234(1) CA61)

Answer 24

s234(1) CA61
Robbery is theft accompanied by violence or threats of violence, to any person or property, used to extort the property stolen or to prevent or overcome resistance to its being stolen.

Question 25

Robbery / Aggravated Robbery

Discuss - At the time of

Answer 25

At the time of
This provision relates to situations where the violence used to extort the property stolen, or to prevent or overcome resistance has resulted in really serious harm to the person assaulted.

The violence resulting in the infliction of grievous bodily harm may also have been used for some collateral purpose, such as attempting to escape after the robbery.

Question 26

Robbery / Aggravated Robbery
Discuss - Being together with
Case law (R v Joyce, R v Galey)

Answer 26

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.

Each must share an intent to steal using their collective force should that be necessary and each must play some active role in 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.”

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 27

Robbery / Aggravated Robbery
Discuss - Being armed with
Define - Offensive weapon (s202A CA61)

Answer 27

Being armed with
The term “being armed with” means that the defendant is carrying the item or has it available for immediate use as a weapon.

Offensive weapons - s202A, Crimes Act 1961
Offensive weapon means any article made or altered for use for causing bodily injury, or intended by the person having it with him or her for such use.

Question 28

Robbery / Aggravated Robbery

Discuss - Instrument

Answer 28

Instrument
The term “instrument” is not defined by statute, but will include any item intended to be used as a weapon or to intimidate and overbear the victim’s will to resist.

Question 29

Robbery / Aggravated Robbery

Discuss - Anything appearing to be such

Answer 29

Anything Appearing to be as such
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.

However a “thing” does not include a part of a person’s body.

Question 30

Aggravated Burglary
Armed with intent to commit burglary
s232(2) CA61

Answer 30

Every one is liable to imprisonment for a term not exceeding 5 years who is armed with a weapon with intent to commit burglary.