Theft offences

Question 1

Elements of theft

Answer 1

Actus reus:
- appropriation
- property
- belonging to another

Mens Rea:
- Dishonesty
- With the intention to permanently deprive

Question 2

Definition of appropriation

Answer 2

Any assumption by a person of the rights of an owner amounts to an appropriation.

• can be any of the rights, eg, selling it, hiring it, giving it away or destroying it (switching price tags on products to pay a lower price was appropriation bc treating as owner)
• appropriation can occur even with the consent of the owner: there is no need for an adverse interference with the owner’s rights
• receiving a gift is a form of appropriation
• includes where he has come to property without stealing it, any later assumption of a right to it by keeping or dealing with it as owner – therefore later assumptions of the rights by keeping or dealing with it is an appropriation (when they form the mens rea)

Question 3

Innocent purchaser

Answer 3

Exempts a defendant from liability for theft where the defendant purchases goods in good faith and for value, then later discovers that the seller had no title to the property but decides to keep it.

Question 4

Property

Answer 4

Includes money and all other property, real or personal, including things in action and other intangible property. Eg. Money, real property (sometimes), personal property e.g. coat, ring car, water, gas; intangible - shares, trademarks, patents, copyright, debts, credit, cheques, unlawful or illegal items such as Class A drugs

Question 5

Exceptions NOT property

Answer 5

Exceptions:
- Land: generally land cannot be stolen except where, authorised to sell and land and sells more than they are meant to, is a trespasser or invited guest and removes a fence or a lavender plant, D is a tenant and removes or sells without removing a fixed eg greenhouse.

• Wide plants: mushrooms, flowers, fruit, foliage. BUT can be guilty if the purpose of picking the wild plant is a reward, to sell or for other commercial purposes. Picks cultivates plants, uproots or cuts parts of the wild plant.
• Wild animals: untamed animals, or animals not ordinarily kept in captivity BUT guilty for tamed animals (pets), animals kept in captivity, trapped animals
• Corpses in hospitals, blood in blood bank, body parts for science
• Electricity
• Confidential information
• Services such as a train journey
• Cheques drawn on account over the agreed overdraft limit

Question 6

Belonging to another

Answer 6

Wide definition: extends beyond ownership to include those having possession or control of it or a proprietary interest in it at the moment of appropriation.

Question 7

Abandoned property

Answer 7

• does not belong to another, but courts reluctant to find property has been abandoned (eg trash outside house is not abandoned bc intended to be collected)
• Not abandoned simply because the owner has stopped looking for it (lost golf balls are not automatically abandoned)

Question 8

Belonging to another: possession or control

Answer 8

Property belongs to those who have possession or control:

Property can belong to a person who has possession or control not just of the property but over the land on which the property is found. (even if unaware of its existence)
- intention to exclude others for example
- Person stole back their own car from mechanic without paying bill was theft

Question 9

Property given to another for a particular purpose

Answer 9

Will be deemed to belong to another if the person is under a legal obligation to use the property for a given purpose.

Legal obligation:
- decided by trial judge in each particular case
- giving roommate rent money and they use it for something else - theft
- giving to travel agent - held clients did not expect him to retain and deal with the money in a particular way or that an obligation to do so was undertaken by him (by keeping money separate)
- assurances that money would be safeguarded by payment into stake-holding co meant they were under an obligation to do just that

Question 10

Property obtained by another’s mistake

Answer 10

When a person receives property by another’s mistake (eg too much change given back), they are under an obligation to restore it.

Intention not to restore it should be regarded as an intention to deprive that person of the property or proceeds.

Note: the person who received the money in mistake is ALSO the legal owner - its just also belongs to the person to whom it should be restored.

Alt approach: person retains equitable interest in the property wrongly transferred.

Question 11

Dishonesty

Answer 11

For the jury to decide.

Question 12

Three exceptions to dishonesty

Answer 12

1. D has a right in law to deprive the other of the property;
2. D would have the other’s consent if the other person knew; or
3. The person to whom the property belongs cannot be discovered by taking reasonable steps (only necessary to believe taking such steps will not enable the owner to be found)

Belief does not need to be reasonably held, as long as it is genuinely held.

Question 13

Ivey test

Answer 13

1) What was the defendant’s knowledge or belief of the facts?

2) Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people?

Question 14

Willingness to pay

Answer 14

A person can appropriate property dishonestly despite being willing to pay for the property.

This allows people to be convicted of theft when they take property that the owner does not wish to sell, intending to pay for that property.

Question 15

Timing of dishonesty

Answer 15

Dishonest intent must be formed at a time when the good belong to another. A person cannot be convicted of theft if they only form the dishonest intent after ownership of the property has passed to D.

problems for:
Food (ownership passes when eaten or ordered)
Petrol - ownership passes when it is put in a petrol tank
These would be charge for making off without payment.

Question 16

Intention to permanently deprive the other of it

Answer 16

Intention to permanently deprive the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights

Can be satisfied:
1. Dictionary definition of ‘to dispose of’
- the defendant attempting to sell the owner their property
- the defendant using the owner’s property for bargaining (ransom)
- rendering the property useless

2. Intending to treat it in a manner which risks its loss
3. More than ‘dealing with’ is required.

Question 17

Dictionary definition of to dispose of

Answer 17

• stealing a pair of curtains from a store to return them and claim a refund was theft as she treated them as her own to dispose of
• taking someone’s car and demanding payment for its return is theft
• held that if the condition as to an item’s return can be readily fulfilled and may be fulfilled in the near future, the jury may concluded that an intention to permanently deprive had not been made out (case where guy took girls phone and would not return it until she got a guy to come talk to them)

Question 18

Rendering property useless

Answer 18

destroying property amounts to theft as it demonstrates an intention to treat the headphones as his own to dispose of regardless of the owner’s rights

Question 19

Intending to treat it in a manner which risks its loss

Answer 19

Risking property’s loss is dealing with it in such a way as to amount to treating it as one’s own.

Question 20

More than mere dealing is required

Answer 20

Theft will not be found if defendant did not intend to treat the car as his own to dispose of regardless of the owner’s rights.

E.g. took a car but left/abandoned it shortly with doors open and hazard lights on - found was not left because no intention to treat as own to dispose of.

• Later case held it is for the jury to decide upon circumstances whether defendant holds intent to deprive

Question 21

Borrowing

Answer 21

Borrowing or lending must be for a period and in circumstances making it equivalent to an outright taking or disposal - intention must be to return the thing in such a changed state that it can truly be said that all its goodness or virtue has gone (returning tickets at end of journey or returning flashlight after using up batter)

When property is borrowed: was the intention to return it minus all its goodness, virtue and practical value? If yes this is an outright taking or disposal

E.g. case where took movies from cinema, copied them and sold the copies, but returned the films was NOT theft.

Question 22

Interchangeable property

Answer 22

Intending to return notes/coins of same value is not the same as intending to return the identical ones that were taken.
- May be relevant to the issue of dishonesty, it does not negate the intention to permanently deprive the owner of the original notes and coins.

Question 23

Robbery

Answer 23

Actus Reus:
- actus reus of theft
- Force (in one of three ways - uses force, puts any person in fear or seeks to put any person in fear of being then and there subjected to force)
- On any person
- Use or threat of force immediately before or at the time of stealing

Mens rea:
- mens rea of theft
- intent to use force in order to steal

Question 24

AR Robbery: theft

Answer 24

If there is no theft there is no robbery. So should consider this first.

Actus reus:
- appropriation
- property
- belonging to another

Mens Rea:
- Dishonesty
- With the intention to permanently deprive

Question 25

Force or threat of force

Answer 25

Three ways in which this is satisfied:

i. uses force; or
ii. puts a person in fear of being then and there subject to force; or
iii. seeks to put a person in fear of being then and there subjected to force.

This is the aggravating element which elevates a theft to robbery

Question 26

i. uses force

Answer 26

Not defined but clear that force does not require violence.

e.g. nudging victim amounted to force
- force to detach property (wrenching shopping bag away) BUT removing a cigarette from someone’s hand was not

Question 27

ii. puts someone in fear of being subject to force

Answer 27

No need to apply physical force. A threat by the defendant which causes the person to think that force will be used against them or at the very least apprehend that fact will be enough.
No need for the victim to fear the force they think will be used against them (the victim being brave won’t protect the thief)

Question 28

iii. seeks to put fear in

Answer 28

Defendant can still be liable even if the person is not aware that they are being threatened with force, provided the defendant intends to make that person think they will be subjected then and there to force.

Question 29

Force: on any person

Answer 29

The threat or use of force does not have to be directed towards the person from whom the property is stolen. The threat or use of force can be on any person.

Question 30

Use or threat of force immediately before or at the time of stealing

Answer 30

The continuing act theory: where defendant starts stealing before the force has been used.

Defendant must:
act with the mens rea of theft; and
intend to use force in order to steal

Note: force must be used at the time of theft. In case where a fight broke out and then one of the motorbikes was taken as an afterthought - this is not a theft at the time force was used so therefore no conviction for robbery

Question 31

Sentence for burglary

Answer 31

Dwelling: 14 years
Any other case: 10 years

Question 32

Burglary: 9(1)(a) and (b)

Answer 32

Burglary: 9(1)(a)
Must:
- enter as a trespasser; and
- have the intention to commit one of these ulterior offences as they do so:
- Steal
- Inflict grievous bodily harm; or
- unlawfully damage property

Burglary is committed at the point of entry. It does not matter whether or not the defendant goes on to commit the ulterior offence.

The key issue is whether the defendant intended to commit the ulterior offence at the point of entry.

Burglary: 9(1)(b)
Defendant must:
- have entered as a trespasser
- once inside:
- steal or attempt to steal; or
- inflict, or attempt to inflict grievous bodily harm

The burglary is committed at the point of attempt or commission of the theft or infliction of grievous bodily harm. In terms of sentencing, it makes no difference whether the defendant is convicted of a Section a or b.

Question 33

Burglary: 9(1)(a) AR and MR

Answer 33

Actus reus:
- defendant enters
- a building or part of a building
- as a trespasser

Mens rea:
- knowing or being reckless as to entry as a trespasser
- At the time of entry D intended any of the ulterior offences:
> Steal anything in the building or part of the building
> Inflict grievous bodily harm on any person in the building or part of the building; or
> Damage unlawfully the building or anything therein

Question 34

When is a 9(1)(a) burglary committed?

Answer 34

A 9(1)(a) burglary is complete upon entry provided this is done as a trespasser and accompanied by the intention to commit the ulterior offence.

No need to actually commit the ulterior offence.

Question 35

9(1)(a): enters

Answer 35

Entry is satisfied when any part of a person’s body entered a building.
Question of fact for the jury.
E.g. head and arm stuck in window counted as entry

Question 36

9(1)(a): building or part of a building

Answer 36

• Structure of considerable size and intended to be permanent or at least endure for a considerable time.
• 25 ft long freezer container counted
• temporary storage containers were not.
• part not authorised to be in

Part:
- entering into a bounded area of a department store to go through cash register was trespass to part of a building as the defendant knew that area was off limits.

Question 37

9(1)(a): as a trespasser

Answer 37

Must be proved that a person entered a building or part of one as a trespasser.

Can enter as a trespasser:
- without consent
- in excess of authority

• Entry in excess of permission: son robbing father’s house was to be found to be trespass as the basis of their entry was in excess of the permission given to them

Question 38

9(1)(a): mens rea

Answer 38

1. Enters knowing or being reckless that the entry was a trespass:
   - It need not be proved that the defendant knew in law that they were a trespasser. The defendant merely has to know or be reckless as to the facts which make them a trespasser e.g. acting in excess of permission.
2. Intending to commit one of the ulterior offences at the time of entry:
   - it must be proved that UPON ENTRY the defendant intended to commit one of the ulterior offences listed. Therefore upon entry the defendant must:
   > intend to steal from the building or part of the building
   > intend to inflict GBH on any person in the building or part of the building and/or
   > intend unlawfully to damage the building or anything in the building or part of the building

Note: conditional intent is enough (eg looking around to see if anything is worth stealing)

Question 39

9(1)(b) burglary: AR and MR

Answer 39

Prosecution must establish:
- Defendant entered
- A building or part of a building
- As a trespasser
- Knowing or being reckless as to entry as a trespasser
- Did one of the following:
> Stole something from the building or part of the building
> Attempted to steal something from the building or part of the building (full AR and MR of theft are required)
> Inflicted GBH on any person
> Attempted to inflict GBH on any person
For infliction of harm, no offence is required, simply the infliction of the harm.

Question 40

When is 9(1)(b) burglary committed?

Answer 40

Requires that once inside the building (or part of the building), having entered as a trespasser, the defendant goes on to commit theft or GBH or attempts to commit these offences.

Burglary is committed at the time of the commission or attempted commission of the offence.

Question 41

Sentence for aggravated burglary

Answer 41

Life sentence

Question 42

What is aggravated burglary?

Answer 42

Committing a burglary and at the time has with him:

• firearm of imitation firearm (including airgun or airpistol or anything which has the appearance of one even if not capable of being fired)
• weapon of offence: any article made or adapted for use for causing injury to or incapacitating a person or intended by the person having it with him for such use; and
• ‘explosive’ means any article manufactured for the purpose of producing a practical effect by explosion or intended by the person having it with him for that purpose

Question 43

When must they have the weapon of offence on them?

Answer 43

9(1)(a): the defendant must have this article with them when they entered the building

9(1)(b): the defendant must have this article with them when committing the theft (or attempt) or the grievous bodily harm (or attempt)

For 9(1)(b) do not have to have the article when entering(trespassing) into the property, only at the time they actually steal or cause GBH).

Similarly, if never enter with the weapon only have it outside, this is not aggravated burglary

Question 44

What amounts to a weapon of offence?

Answer 44

Can be any article
- Made or adapted for causing injury to or incapacitating a person; or
- Which at the time of committing the burglary, the defendant possesses with the intention of causing injury to or incapacitating a person

SO must either be a weapon of offence OR an item which is intended to be used as a weapon of offence:

E.g. weapon of offence (on its own by virtue of having it is AB):
- pepper spray
- firearm

Adapted weapon of offence: must be intended by the person having it to be used as a weapon of offence, so having on your person without intent is not AB:
- screwdriver
- hammer
- cricket bat
But these could all become weapons of offence if the person has the intent to hurt someone with it.