Violence Offences Flashcards
Wounding with Intent to GBH (Act & Section)
Section 188(1), Crimes Act 1961
Wounding with Intent to GBH (Elements)
- With Intent to cause grievous bodily harm
- To any person
- Wounds or Maims or disfigures or causes GBH
- To any person
Wounding with Intent to Injure (Act & Section)
Section 188(2), Crimes Act 1961
Wounding with Intent to Injure (Elements)
- With Intent to injure any person or with reckless disregard for the safety or others
- Wounds or Maims or disfigures or causes GBH
- To any person
Injuring with Intent to GBH (Act & Section)
Section 189(1), Crimes Act 1961
Injuring with Intent to GBH (Elements)
- With Intent to cause grievous bodily harm
- To any person
- Injures
- Any person
Injuring with Intent to Injure (Act & Section)
Section 189(2), Crimes Act 1961
Injuring with Intent to Injure (Elements)
- With Intent to injure any person or with reckless disregard for the safety or others
- Injures
- Any person
Wounding with Intent (penalties)
- Section 188(1) - 14 years
- Section 188(2) - 7 years
Injuring with Intent (penalties)
- Section 189(1) - 10 years
- Section 189(2) - 5 years
Intent (define)
- A deliberate act
- Intent to get a specific result
Aggravated Wounding (GBH) (Act & Section)
Section 191(1), Crimes Act 1961
Aggravated Wounding (GBH) (Elements)
- With Intent:
(a) to commit or facilitate the commission of any imprisonable offence; or
(b) to avoid the detection of himself or of any other person in the commission of any imprisonable offence; or
(c) to avoid the arrest or facilitate the flight of himself or of any other person upon the commission of any imprisonable offence - Wounds or maims or disfigures or causes GBH or stupifies or renders unconscious any person or by any violent means renders any person incapable of resistance.
Intent (Deliberate Act)
Intent means that an act or omission must be done deliberately. The act or omission must be more than involuntary or accidental
Intent to produce a result
The second type of intent is an intent to produce a specific result. In this context result means “aim, object, or purpose”
Intent (case law)
R v Collister
Intent (R v Collister held)
Circumstantial evidence from which an offender’s Intent may be inferred can include:
- The offender’s actions and words before, during, and after the event
- The surrounding circumstamces
- The nature of the act itself
In serious assault cases, additional circumstantial evidence that may assist in proving an offender’s intent may include:
- prior threats
- evidence of premeditation
- the use of a weapon
- whether any weapon used was opportunistic or purposely brought
- the number of blows
- the degree of force used
- the body parts targeted by the offender (eg head)
- the degree of resistance or helplessness of the victim (eg unconscious)
Intent serious assault (case law)
R v Taisalika
Intent
(R v Taisalika held)
The nature of the blow and the gash which it produces point strongly to the presence of the necessary intent
Wound (case law)
R v Waters
Wound
(R v Waters held)
A breaking of the skin would be commonly regarded as a characteristic of a wound. The breaking of the skin will be normally evidenced by the flow of blood and, in its occurance at the site of a blow or impact, the wound will more often than not be external. But there are those cases where the bleeding which evidences the separation of tissues may be internal.
Disfigures (case law)
R v Rapana and Murray
Disfigures (R v Rapana and Murray held)
Disfigures covers not only permanent damage but also temporary damage
Disfigures (define)
To disfigure means “to deform or deface; to mar or alter the figure or appearance of a person.”
With Intent to Commit or Facilitate (case law)
R v Tihi
With Intent to Commit or Facilitate (R v Tihi held)
In addition to one of the specific intents in paragraph (a) - (c) it must be shown that the offender meant to cause the specified harm or foresaw that the actions undertaken by him were likely to expose others to the risk of suffering it.
Intent to avoid arrest (case law)
R v Wati
Intent to avoid arrest (R v Wati held)
There must be proof of the commission or attempted commission of a crime either by the person committing the assault or by the person whose arrest or flight he intends to avoid or facilitate.
Recklessness established (case law)
Cameron v R
Recklessness (Cameron v R held)
Recklessness is established if:
(a) the defendant recognized that there was a real possibility that:
(i) his or her actions would bring about the proscribed result; and/or
(ii) that the proscribed circumstances existed and
(b) having regard to that risk those actions were unreasonable
Recklessness knowledge (case law)
R v Tipple
Recklessness (R v Tipple held)
Recklessness requires that the offender know of, or have a conscious appreciation of the relevant risk, and it may be said that it requires a deliberate decision to run the risk
Injure (define)
s2, Crimes Act 1961
To Injure means to cause actual bodily harm
Injures/Bodily harm (case law)
R v Donovan
Injures/Bodily harm (R v Donovan held)
‘Bodily harm’… includes any hurt or injury calculated to interfere with the health or comfort of [the victim]… it need not be permanent, but must, no doubt, be more than merely transitory and trifling.
Stupifies (case law)
R v Sturm
Stupifies (R v Sturm held)
To stupify means to cause an effect on the mind or nervous system of a person which really seriously interferes with that person’s mental or physical ability to act in any way which might hinder the crime
Grievous Bodily Harm (case law)
DPP v Smith
Grievous Bodily Harm (DPP v Smith held)
“Bodily harm” needs no explanation and “grievous” means no more and no less than “really serious”
Maiming (define)
depriving another of the use of such of his members as may render him less able in fighting, either to defend himself or to annoy is adversary.
Must be some degree of permanence.
Renders Incapable of Resistance
(case law)
R v Crossan
Renders Incapable of Resistance
(R v Crossan held)
Incapable of resistance includes powerlessness of the will as well as a physical incapacity
Violent means
(case law)
R v Claridge
Violent Means
(R v Claridge held)
“violent means” is not limited to physical violence and may include threats of violence, depending on the circumstances.
Aggravated Assault (Act & Section)
Section 192(1)/(2), Crimes Act 1961
Aggravated Assault
192(1) (Elements)
- Assaults
- Any other person
- With Intent:
(a) to commit or facilitate the commission of any imprisonable offence; or
(b) to avoid the detection of himself or of any other person in the commission of any imprisonable offence; or
(c) to avoid the arrest or facilitate the flight of himself or of any other person upon the commission of any imprisonable offence
Aggravated Assault Section 192(2) (Elements)
- Assaults
- Any Constable or any person acting in aid of any Constable or any person acting in the lawful execution of any process
- with Intent to obstruct the person so assaulted in the execution of his duty.
Assault define
The act or 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 or she has, the present ability to affect his or her purpose.
Discharging a Firearm or Doing a Dangerous Act with Intent
(Act & Section)
Section 198(1)/(2), Crimes Act 1961
Discharging a Firearm or Doing a Dangerous Act with Intent 198(1) (Elements)
- A person
- With Intent to do GBH
- (a) Discharges any firearm, airgun, or other similar weapon at any person or
(b) Sends or delivers to any person, or puts in place, any explosive or injurious substance or device or
(c) Sets fire to any property.
Discharging a Firearm or Doing a Dangerous Act with Intent
198(2) (Elements)
- A person
- With Intent to injure or with reckless disregard for the safety of others
- (a) Discharges any firearm, airgun, or other similar weapon at any person or
(b) Sends or delivers to any person, or puts in place, any explosive or injurious substance or device or
(c) Sets fire to any property.
Body of the Victim (case law)
R v Chan-Fook
Body of the Victim (R v Chan-Fook held)
The body of the victim includes all parts of his body including his organs, his nervous system and his brain. Bodily injury therefore may include injury to any of those parts of his body responsible for his mental and other faculties… accordingly the phrase actual bodily harm is capable of including psychiatric injury.
discharge a Firearm, Intent GBH (case law)
R v Pekepo
Discharge a Firearm, Intent GBH (R v Pekepo held)
A reckless discharge of a firearm in the general direction of a passer-by who happens to be hit is not sufficient proof. An intention to shoot that person must be established.
Airgun (define)
(a) any air rifle
(b) any air pistol
(c) any weapon from which, by use of gas or compressed air (and not by force of explosive), any shot, bullet, missile, or other projectile can be discharged
firearm (define)
(a) means anything from which any shot, bullet, missile or other projectile can be discharged by force of explosive.
(b) includes-
(i) anything adapted so….
(ii) anything for the time being not capable…. but by completion or replacement of component or correction or repair of defect…
(iii) anything (being a firearm) which is dismantled
(iv) any specially dangerous airgun
explosive (define)
(a) means any substance or mixture or combination of substances which in its normal state is capable either of decomposition at such rapid rate as to result in an explosion or of producing a pyrotechnic effect. And
(b)… includes gunpowder, nitroglycerin, dynamite, gun cotton, blasting powder, fulminate of mercury or other metals, colored flares, fog signals, fuses, rockets, percussion caps, detinators, cartridges, and ammunition of all descriptions
(c) any device, contrivance or article that uses (a) …. does not include a firearm
(d) does not include any firework as defined in section 2 of Hazardous Substances and New Organisms Act 1996.
Property (define)
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.
Using any Firearm Against Law Enforcement Officer (Act & Section)
Section 198A(1)/(2), Crimes Act 1961
Using any Firearm Against Law Enforcement Officer 198A(1) (Elements)
- uses a firearm in any manner whatever
- against any constable or any traffic officer or any prison officer
- acting in the course of his/her duty
- knowing that person is a constabe/traffic officer/prison officer so acting
or
being reckless whether or not that person is a constable/traffic/prison officer so acting
Using any Firearm Against Law Enforcement Officer 198A(2) (Elements)
- uses a firearm in any manner whatever
- with intent to to resist the lawful arrest or detention of himself or of any other person
use a firearm in any manner whatever (case law)
R v Swain
use a firearm in any manner whatever (R v Swain held)
To deliberately or purposely remove a sawn-off shotgun from a bag after being confronted by or called upon by a police constable amounts to a use of that firearm within the meaning of s 198A Crimes Act 1961.
Constable (define)
(a) holds the office of constable (whether appointed as a constable under the Police Act 1958 or this Act) and
(b) includes a constable who holds any level of position within the New Zealand Police
Knowing
Semester and Brookbanks
Knowing or correctly believing… the defendant may believe something wrongly but cannot ‘know’ something that is false.
Intent to resist arrest (case law)
Fisher v R
Intent to resist arrest (Fisher v R held)
It is necessary in order to establish a charge under section 198A(2) for the Crown to prove someone was attempting to arrest or detain him because otherwise the element or mens rea of intending to resist lawful arrest or detention cannot be established
Using any Firearm Against Law Enforcement Officer (penalties)
Section 198A(1) - 14 years
Section 198A(2) - 10 years
Discharging a Firearm or Doing a Dangerous Act with Intent (penalty)
Section 198(1) - 14 years
Section 198(2) - 7 years
Commission of an Imprisonable Offence with a Firearm (Act & Section)
Section 198B, Crimes Act 1961
Commission of an Imprisonable Offence with a Firearm (Elements)
198B(1)(a)
- In committing any imprisonable offence
- uses any firearms
198B(1)(b)
- while committing any imprisonable offence
- Has any firearm with him or her
- in circumstances that prima facie show an intention to use it in connection with that imprisonable offence
Possession (case law)
R v Cox
Possession (R v Cox held)
Possession involves two… Elements.
The first, often called the physical element, is actual or potential physical custody or control
The second, often described as 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.
prima facie (case law)
Tuli v Police
prima facie (Tuli v Police held)
Prima facie circumstances are those which are sufficient to show or establish an intent in the absence of evidence to the contrary.
Pistol
any firearm that is designed or adapted to be held and fired with one hand; and includes any firearm that is less than 762mm in length
Restricted weapon schedule
(1) Anti-tank projectors and ammunition
(2) Grenade dischargers, grenade launchers and grenades containing explosives
(3) Incendiary grenades, including Molotov cocktail
(4) Machine carbines or guns, submachine carbines or guns and machine pistols
(5) mines of an explosive nature
(6) Mortars and ammo
(7) Rocket launchers and ammo
(8) Gas guns
(9) gas
Occupier or driver deemed to be in possession
Section 66, Arms Act 1983
For the purpose of this Act every person in occupation of any land or building or the driver of any vehicle… be deemed to be in possession of that firearm… unless he proves that is was not his property and that it was in the possession of some other person
Robbery (Act & Section)
Section 234(1), Crimes Act 1961
Robbery (elements)
- 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 resistance to it being stolen
Theft (elements)
- Dishonestly
- Without claim of right
- Takes
- Any property
- With intent to deprive any owner permanently of that property
Aggravated Robbery GBH (Act & Section)
Section 235(a), Crimes Act 1961
Aggravated Robbery GBH (elements)
- Robs any person
- at the time of, or immediately before, or immediately after the robbery
- Causes grievous bodily harm
- To any person
Aggravated Robbery 2 or more (Act & Section)
Section 235(b), Crimes Act 1961
Aggravated Robbery 2 or more (elements)
- being together with any other person or persons
- robs
- Any person
Aggravated Robbery weapon (Act & Section)
Section 235(c), Crimes Act 1961
Aggravated Robbery weapon (elements)
- being armed with any offensive weapon or instrument or any thing appearing to be such a weapon or instrument
- robs
- any person
Assault with intent to rob GBH (Act & Section)
Section 236(1)(a), Crimes Act 1961
Assault with intent to rob GBH (elements)
- with intent to rob any person
- causes grievous bodily harm to that person or any other person
Assault with intent to rob weapon (Act & Section)
Section 236(1)(b), Crimes Act 1961
Assault with intent to rob weapon (elements)
- with Intent to rob any person
- being armed with any offensive weapon or instrument or any thing appearing to be such a weapon or instrument
- assaults that person or any other person
Assault with intent to rob 2 or more (Act & Section)
Section 236(1)(c), Crimes Act 1961
Assault with intent to rob 2 or more (elements)
- with intent to rob any person
- being together with any other person or persons
- assaults that person or any other person
Assault with intent to rob minor (Act & Section)
Section 236(2), Crimes Act 1961
Assault with intent to rob minor (elements)
- Assaults any person
- With intent to rob that person or any other person
Dishonestly (define)
An act or omission done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority.
claim of right (define)
a belief at the time of the act in a proprietary or possessor right in property in relation to which offence is alleged to have been committed, although that belief may be based on mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.
Claim of right Defence for robbery (case law)
R v Skivington
Claim of right defence (R v Skivington held)
Larceny(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 negates one of the elements in the offence of robbery, without proof of which the full offence is not made out.
(no theft, no robbery)
Robbery Completed (case law)
R v Lapier
Robbery Completed (R v Lapier held)
Robbery is complete the instant the property is taken, even if possession by the thief is only momentary
Immediate return of property robbery (case law)
R v Peat
Immediate return of property (R v Peat held)
As in the case of theft, the immediate return of goods by the robber does not purge the offence, subject always to the necessary intent existing at the time of taking
Ownership stolen property (define)
Section 218, Crimes Act 1961
… 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
accompanied by violence robbery (case law)
R v Maihi
accompanied by violence (R v Maihi held)
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…
acts not contemporaneous robbery (case law)
R v Mitchell
acts not contemporaneous (R v Mitchell held)
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
Violence (case law)
Peneha v Police
Violence (Peneha v Police held)
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
Threats of Violence (case law)
R v Broughton
Threats of Violence (R v Broughton held)
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.
… whether or not the conduct complained of is capable of amounting to a threat of violence must be assessed in the context it occurred.
Threats of Violence (R v Broughton context)
- 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
Threat VS fear (case law)
R v Pacholko
Threat VS fear (R v Pacholko held)
“The actual presence or absence of fear is not the yardstick. It is the conduct of the accused which has to be assessed rather than ‘the strength of the nerves of the person threatened’”
Physical Proximity (case law)
R v Joyce
Physical Proximity (R v Joyce held)
The Crown must establish that at least two persons were physically present at the time the robbery was committed or the assault occurred
Joint Enterprise (case law)
R v Galey
Joint Enterprise (R v Galey held)
“Being together” in the context of s235(b) involves “two or more persons having common intention to use their combined force, either in any event or as circumstances might require, directly in the perpetration of the crime”
Anything appearing to be such
(case law)
R v Bentham
Anything appearing to be such
(R v Bentham held)
What is possessed must under the definition be a thing. A person’s hand or fingers are not a thing. If they were regarded as property… the court could theoretically make an order depriving the offender of his rights to them and they could be taken into the possession of the Police
Blackmail (Act & Section)
Section 237(1), Crimes Act 1961
Blackmail (Elements)
- A person
- 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
- To obtain any benifit or cause loss to any person
Obtain (define)
Obtain or retain for himself or herself or for any other person
Benifit (define)
Includes a privilege, service, or benifit that has no ascertainable monetary value
Pecuniary advantage (define)
Economic advantage or a financial gain or benifit, an enhancement of a person’s financial position
Privilege (define)
A special right or advantage and need not be a financial one
Valuable consideration (define)
Money or money’s worth
Statutory Defence to Blackmail
Believed they were entitled to obtain benifit or cause loss
and
Making the threat in the circumstances is a reasonable and proper means of effecting his purpose
Blackmail (penalty)
Section 238, Crimes Act 1961
14 years imprisonment
Demanding with Intent to Steal (Act & Section)
Section 239(1)/(2), Crimes Act 1961
Demanding with Intent to Steal Section 239(1) (Elements)
- 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
Demanding with Intent to Steal Section 239(2) (Elements)
- With menaces or by any threat
- demands any property
- from any person
- With intent to steal it
Execute a document
“do what the law requires to give validity to the document. It is not confined to the signing or doing something to the face of the document.”
Entry of data into a computer program may amount to “execution” of a document
Demand
a clear request made firmly
Menaces
words or conduct conveying a threat of something detrimental or unpleasant happening to the person to whom the threat is made
Demanding with Intent to Steal (penalties)
Section 239(1) - 14 years
Section 239(2) - 7 years
Investigation of Robbery
you may be informed
- before the incident of an intended robbery
- during or after the incident when a raid alarm at the premises goes off
- after the offender’s have left the scene of the crime
Responding to intended Robbery
Step 1 evaluate the reliability of the information
Step 2 Consider obtaining telco/internet/social media data to corroborate info
Step 3 Disseminate info (where appropriate) to O/C CIB, NIC, AOS, Comms, Air Support
Step 4 NIA checks on suspects for firearms, criminal history, vehicles, address, family violence
Step 5 obtain photos of suspects for briefing & door to door enquiries
Step 6 Liase with victim and carefully examine scene (covert where possible)
Step 7 obtain CCTV to get footage of pre-planning/recon
Robbery investigation priorities
- Secure the safety of all members of the Police and public
- prevent the crime
- contain the area of the offence
- gather evidence from the crime scene and preserve it
- establish and then eliminate suspects
- identify the offender
- locate the offender
- search the offender and their premises, confiscating and preserving any evidence
- establish what, if any, case exists for prosecution
- prepare files for prosecution
Abduction (Act & Section)
Section 208, Crimes Act 1961
Abduction (Elements)
- Unlawfully
- Takes away or detains
- A person
- Without their consent or
With consent obtained by fraud or duress - With intent to:
(a) go through a form of marriage or civil union
or
(b) have sexual connection with the person
or
(c) cause the person to go through (a) or (b) with some other person
Abduction (penalty)
14 years
Crown must prove for Abduction
- The defendant took away or detained a person
- The taking or detention was intentional
- The taking or detaining was unlawful
- The taking or detention was without consent (or consent obtained by fraud or duress)
- The defendant knew there was no consent to the taking or detention
- The defendant intended to (a), (b), (c).
Unlawfully(define)
Without lawful justification, authority or excuse
(must prove beyond reasonable doubt)
Taking away (R v Wellard held)
The essence of the offence of kidnapping is the “deprivation of liberty coupled with a carrying away from the place where the victim wants to be”
Taking away (case law)
R v Wellard
Taking away VS detaining (case law)
R v Crossan
Taking away VS detaining (R v Crossan held)
Taking away and detaining are separate and distinct offences The first consists of taking [the victim] away; the second of detaining her. The first offence was complete when the prisoner took the woman away against her will. Then having taken her away, he detained her against her will, and his conduct in detaining her constituted a new and different offence.
Detaining (case law)
R v Pryce
Detaining (R v Pryce held)
Detaining is an active consept meaning to “keep in confinement or custody”. This is to be contrasted to the passive concept or “harbouring or mere failure to hand over.
Consent (case law and held)
R v Cox
Consent must be full voluntary free and informed, freely and voluntarily given by a person in a position to form a rational judgement
Abduction offence complete (case law)
R v Mohi
R v Mohi held
The offence is complete once there that’s been a period of detention or a taking away accompanied by the necessary intent, regardless of whether that intent was carried out.
Abduction intent formed (case law)
R v Waaka
R v Waaka held
Intent may be formed at any time during the taking away. If a taking away commences without the intent to have intercourse, but that intent is formed during the taking away, then that is sufficient for the purpose of the section.
Kidnapping (Act & Section)
Section 209, Crimes Act 1961
Kidnapping (Elements)
- Unlawfully
- Takes away or Detains
- A person
- Without their consent or with consent obtained by fraud or duress
- (a) with intent to hold him or her for ransom or to service
or
(b) with intent to cause him or her to be confined or imprisoned
or
(c) with intent to cause him or her to be sent or taken out of New Zealand
Must prove for 209 conviction
- Defendant took away or detained a person
- Taking or detention was intentional or deliberate
- Taking or detention was unlawful
- Taking or detention was done without that person’s consent (or obtained by fraud or duress)
- Defendant knew there was no consent to the taking or detention
- Defendant intended to (a), (b), or (c)
Kidnapping Intent and Knowledge (case law)
R v M
Kidnapping Intent and Knowledge (R v M held)
The Crown must establish that the accused intended to take away or detain the complainant and that he or she knew that the complainant was not consenting
Ransom (define)
A sum of money demanded or paid for the release of a person being held captive
Hold for service (define)
to keep the victim as a servant or slave
Confining (define)
“Confining” a person can include restricting their movement to within a geographical area, but also has a wider meaning that includes curtailing their activity and exercising control and influence over them
note “to cause” suggests it is not necessary for the kidnapper to directly effect the confinement himself
Imprison (define)
to put them in prison, or to confine them as if in prison. It has a narrower meaning than “confine” and may apply to being locked in a room or the boot of a car for example.
Abduction or Young Person Under 16 (Act & Section)
Section 210(1)/(2)
Abduction of Young Person Under 16 210(1)
(Elements)
- With intent to deprive a parent or guardian or other person having lawful care or charge of a young person
- Unlawfully takes away or detains
- the young person
Abduction of Young Person Under 16 210(2)
(Elements)
- receives a young person
- knowing that he or she has been unlawfully taken or enticed away or detained
- with intent to deprive a parent or guardian or other person having lawful care or charge of him or her of possession or him or her.
R v Forrest & Forrest held
The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age.
For 210(1) the Crown must prove…
- The defendant took, enticed or detained a person under the age of 16 years
- The taking, enticing or detention was intentional
- The taking, enticing or detention was from a person who had lawful care, or charge of the young person
- The defendant knew the other person had lawful care, or charge of the young person
- The taking, enticing or detention was unlawful
- It was done with Intent to deprive a parent, guardian or other person having lawful care or charge of the young person of possession of that young person
For 210(2) the Crown must prove…
- The defendant received a person under the age of 16 years
- The receiving was intentional
- The defendant knew the young person had been unlawfully taken or enticed away or detained by another from a parent, guardian or other person having lawful care or charge of him or her of the possession of that young person
- The defendant intended by reason of the receiving to deprive a parent, guardian or other person having lawful care or charge of him or her of the possession of that young person
Depriving a parent of possession (case law)
R v Chartrand
Depriving a parent of possession (R v Chartrand held)
It was sufficient that the taker knows or forsees that his or her actions would be certain or substantially certain to result in the parents (guardians etc.) being deprived of the ability to exercise control over the child
whether the defendant may have had an innocent motive, or intended to interfere with the possession for a very short period of time is beside the point
It is not necessary to prove the accused intended a permanent deprivation
Entice (define)
To “entice” means to tempt, persuade, or attract by arousing hope or desire.
Consent of a young person is no defense (ss 208 & 209)
Section 209A
For the purposes of sections 208 and 209, a person under the age of 16 years cannot consent to being taken away or detained.
Consent of a young person is no defense (s 210)
Section 210(3)(a)
For the purposes of subsection (1) and (2), it is immaterial whether the young person consents, or is taken or goes or is received at his or her own suggestion
Belief that a person is over 16 is no defence (s 210)
Section 210(3)(b)
For the purposes of subsection (1) and (2), it is immaterial whether the offender believes the young person to be of or over the age of 16.
No presumption because of age
Section 127, Crimes Act 1961
There is no presumption of law that a person is incapable of sexual connection because of his or her age
Statutory defence of good faith (ss 209 & 210)
Section 210A, Crimes Act 1961
A person who claims in good faith a right to the possession of a young person under the age of 16 years cannot be convicted of an offence against section 209 or 210 because he or she gets possession of the young person.
Section 210(1)&(2) penalties
7 years imprisonment
Smuggling Migrants (Act & Section)
Section 98C, Crimes Act 1961
Smuggling Migrants (Elements)
- Arranges for an unauthorized migrant to (1)enter or (2)be brought to New Zealand or any other state.
- for a material benifit and
- knows the person is an unauthorized migrant or
is reckless as to whether the person is an unauthorized migrant. - (2) and knows that the person intents to try to enter the state or
is reckless as to whether the person intends to enter the state
People Trafficking (Act & Section)
Section 98D, Crimes Act 1961
People Trafficking (Elements)
(1)
- arranges, organizes, or procures
(a)
- entry or exit of a person to New Zealand or any other state
(b)
- the reception, recruitment, transport, transfer, concealment, or harbouring of a person in New Zealand or any other state.
(i)
- for the purpose of exploiting or facilitating the exploitation of the person or
(ii)
Knowing that it involved 1 or more acts of coercion, or deception, or both.
exploit (define)
to cause or be caused by an act of deception or coercion the person to be involved in
(a) prostitution or other sexual services
(b) slavery, practices similar to slavery, servitude, forced labor, or forced services
(c) the removal of organs
Migrant Smuggling / People Trafficking (penalties)
20 years imprisonment & $500,000 fine.
Migrant Smuggling / People Trafficking (misc other)
- does not need to be successful
- must have Attorney-General’s consent to prosecute (98F)
Investigative Approachs to People Trafficking
Reactive investigation
Victim led and often initiated by an approach to Police by the victim or an agent of the victim.
Proactive Approach
Police led. A combination of standard investigation techniques supplemented by intelligence resources to identify and locate traffickers, gather evidence and prosecute.
Disruptive Investigation
Appropriate in circumstances where the level of risk to the victim demands an immediate response, and the other two options are not practicable.
5 Phases of a Blackmail Investigation
- Initial reporting phase
- Mobilization phase
- Consolidation phase
- Investigation and operational phase
investigate and identify suspects, threats, negotiation, payment, intervention/arrest - Reactive phase
