LLB180 Study Guide - Final Guide: Original Position, Takers, Implied Consent
PROPERTY OFFENCES – ISSUES & ELEMENTS:
LARCENY – Crimes Act Section 117
Origin – Illich (1987):
‘At common law, larceny is committed by a person who, without the consent of the owner,
fraudulently and without a claim of right made in good faith, takes and carries away
anything capable of being stolen with intent, at the time of such taking, permanently to
deprive the owner thereof…’
ACTUS REUS:
Property capable of being stolen
Property is in the possession of a person other than the defendant
Property is taken and carried away by the defendant
The taking is done without the consent of the possessor
MENS REA:
Property is taken with an intention to permanently deprive
Property is taken without a claim of right made in good faith
Property is taken fraudulently (dishonestly)
EXPANSIONS OF LARCENY –
LARCENY BY A BAILEE – Crimes Act Section 125
LARCENY BY A SERVANT OR EMPLOYEE – Crimes Act Section 156
Maximum penalty – 10 years
EMBEZZELEMENT – Crimes Act s 157 –
Maximum punishment of 10 years imprisonment
FRAUD OFFENCES –
FRAUDULENT APPROPRIATTION – Crimes Act s 124
Relates to dishonest retention of property innocently obtained
Penalty is lower than larceny – 2 years imprisonment or 20 penalty units (or both)
Offence is basically obsolete
EXPANDING INTENT TO PERMENANTLY DEPRIVE –
JOYRIDING – Crimes Act s 154A – Taking a Conveyance without Consent of the Owner
Maximum penalty – 5 years (same as larceny)
Dealt with summarily
Maximum penalty – 2 years or 50 penalty units – Criminal Procedure Act
1986 ss 8, 20, 268 and Schedule 1, Table 2
CAR STEALING – Crimes Act s 154F
Maximum penalty – 10 years
Road Transport (General) Act 2005 s 249 – using a motor vehicle without consent
Maximum penalty – 20 penalty units
CARJACKING – Crimes Act s 154C
Circumstances where the defendant assaults a person in order to do so, or takes the
car with a person inside
Maximum penalty – 10 years
Defendant in company, armed, or maliciously inflicts ABH – penalty jumps 14 years
AGGRAVATED OFFENCE –
ROBBERY – Crimes Act Section 94 – Robbery or Stealing from the Person:
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Maximum penalty – 14 years
RECEIVING STOLEN PROPERTY –
Crimes Act Sections 187-190; 192 – offences of receiving, disposing of or attempting to
dispose of stolen goods
Maximum penalty – 10 years
ELEMENTS:
STOLEN property – must not have been returned
Police must be careful only to take temporary custody – Villensky [1892]
RECEIVING that property – D must take possession, not merely custody – Fien [1962]
May be constructively held through an employee or accomplice – Miller and
Connors (1854)
KNOWLEDGE that the property is stolen –
Mere suspicion is INSUFFICIENT; nor is deliberately closing one’s eyes, but
both are evidence of knowledge – Raad [1983]
Distinguishing between belief and suspicion – Hall (1985):
o‘”I cannot say I know for certain that these goods are stolen, but there
can be no other reasonable conclusion in the light of all the
circumstances, in the light of al l that I have heard and seen.” … is
enough (that is, belief) even if the defendant says to himself: “Despite
all that I have seen and all that I have heard, I refuse to believe what
my brain tells me is obvious”. What is not enough, of course, is mere
suspicion. “I suspect that these goods may be stolen, but it may be on
the other hand that they are not.”’
Belief must exist at the time of receipt
Disposing and then later realising may still result in a conviction if the
property is disposed of
Receiving the stolen property should also be DISHONEST
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WEEK 3 – PROPERTY OFFENCES:
Chapter 11 – Dishonest Acquisition:
11.1 – Introduction:
oProperty rights are seen as extremely valuable rights
oComplex area due to the interaction with civil law
oNSW law is in a transitional phase
Core offence of larceny still applies
Series of statutory extensions
Intended to cover the gaps larceny cannot fill
NSW is the only jurisdiction to still use larceny
Increasingly different from other states
oFebruary 2010 – amendments were made to the overlapping offences
Replaced with a smaller number of general offences
oNew offences rely on dishonesty as a key element
Offences can be committed without acquisition
11.2 – General Concepts and Themes:
Important to view offences in their historical and social context
o11.2.1 – Changing Ideas of what Dishonest Acquisition Offences Should Protect:
Validity of justifications changes over time
11.2.1.1 – Use and Public Order:
Original laws were not concerned with protecting public property
Primarily concerned with ensuring whoever had possession could continue to do
so
11.2.1.2 – Property:
Increased emphasis on ownership and the negative right to exclude others
Property rights are not separate from the social order
oForm a major part of political structure
Political basis for property rights is evident in the issue of downloading digitalised
music
oWhether the conduct should be lawful, civil or criminal
11.2.1.3 – Wealth:
Offences are concerned with causing a financial advantage or disadvantage
No need to demonstrate property ownership
Misleading to describe these offences as property offences
Questionable whether it adds flexibility or the scope of law is becoming too broad
and undefined
11.2.1.4 – Property and the Civil Law:
Recognised as the foundational aspects of the modern economy
Property interests are protected by the civil law of tort, contract and equity
Criminal laws role is to resolve a subset of those breaches (emphasis on
punishment)
o11.2.2 – From Manifest Criminality to Dishonesty:
Expansion of a limited form of public order
Larceny-based offences are highly articulated sets of AR requirements
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Document Summary
Property is in the possession of a person other than the defendant. Property is taken and carried away by the defendant. The taking is done without the consent of the possessor. Property is taken with an intention to permanently deprive. Property is taken without a claim of right made in good faith. Larceny by a bailee crimes act section 125. Larceny by a servant or employee crimes act section 156. Relates to dishonest retention of property innocently obtained. Penalty is lower than larceny 2 years imprisonment or 20 penalty units (or both) Joyriding crimes act s 154a taking a conveyance without consent of the owner. Maximum penalty 5 years (same as larceny) Maximum penalty 2 years or 50 penalty units criminal procedure act. Road transport (general) act 2005 s 249 using a motor vehicle without consent. Circumstances where the defendant assaults a person in order to do so, or takes the car with a person inside.
