Theft by Person in a Special Relationship

Question 1

Theft by person in a special relationship

Act/Section/Penalty

Answer 1

CA61; S220

7 years imprisonment

Question 2

Theft by person in a special relationship - legislation

Answer 2

Theft by person in special relationship

(1) This section applies to any person who has received or is in possession of, or has control over, any property on terms or in circumstances that the person knows require the person—
(a) to account to any other person for the property, or for any proceeds arising from the property; or
(b) to deal with the property, or any proceeds arising from the property, in accordance with the requirements of any other person.
(2) Every one to whom subsection (1) applies commits theft who intentionally fails to account to the other person as so required or intentionally deals with the property, or any proceeds of the property, otherwise than in accordance with those requirements.
(3) This section applies whether or not the person was required to deliver over the identical property received or in the person’s possession or control.
(4) For the purposes of subsection (1), it is a question of law whether the circumstances required any person to account or to act in accordance with any requirements.

Question 3

Theft by person in a special relationship - what is required to be proved?

Answer 3

1. That he or she has received property on terms or in circumstances which, to the defendant’s knowledge, affect what the defendant may do with the property or its proceeds or require the defendant to act in accordance with the requirements of another person; and
2. That he or she intentionally departed from the relevant obligation.

Question 4

Theft by person in a special relationship - mental elements of the offence

Answer 4

Two different mental elements:

1. The defendant must know that the acquisition of the property was on terms or in circumstances which require the defendant to account for the property or its proceeds, or to deal with the property or its proceeds in accordance with the requirements of another person. This requirement will be met if the defendant is aware there are terms of some kind affecting his or her freedom of action; it should not be necessary that the precise details of those obligations be known.
2. The defendant must have intentionally departed from his or her obligations.

R v Sizemore: There is no requirement that the accused be shown to have acted dishonestly or without claim of right. The mere fact of intentionally failing to perform one’s obligations is sufficient for liability.