[Criminal; Property] Offences Relating to Property in Queensland


OFFENCES RELATING TO PROPERTY


Purpose

            Protect a person’s ownership, possession, and similar rights and to prevent and punish infringements of these rights

Offences relating to property in Qld

Offences
Provisions
Stealing

390-417, 444A-457
Burglary

418-427
Fraud and deception


427A-442
Identify fraud

408D
Computer hacking

408E
Secret commissions

458-479
Property damage and arson

458-479
Forgery and personation
484-571





Offence involving Stealing


HISTORICAL DEVELOPMENT

Definitions


Old common law
Queensland (1899)
UK, Vic, SA (1968)-
Offence
Larceny
Stealing
Theft



Elements
·       Steals
·       Without consent
·       Fraudulently and without a claim of right made in good faith
·       Takes away anything capable of being stolen
·       With intent
·       Permanently deprive the owner thereof. [1]
·       Fraudulently takes anything capabe of being stolen
·       OR
·       Fraudulently converts to the person’s own use[2]

·       steals
·       dishonestly appropriates property
·       belonging to antoher
·       with intention of permanently depriving the other of the property[3]





STEALING

Stealing

Things, capable of being stolen, s390
Belonging to another
Taking or converting, s391(1)
Lack of consent not required


Fraudulently: special intention, s391(2)(a)-(f)
No claim of right, s22(2)[5]


Aggravated penalties, s398 ‘special cases’


1.1       Taking or converting, s391(1)

First alternative: Taking
Requires physical movement or dealing with property by physical act (so called asportation), s391(6)

Second alternative; Converting
Dealing with the property in a way inconsistent with the right of the owner: Ilich  R
e.g keeping property, selling it, changing its appearance, also stealing by bailee etc
NOT: mere use of property, offer/preparation for sale, mere failure to return (R v Angus)

1.2       Things capable of being stolen, s390

S390: Anything (a) moveable or (b) capable of being made movable

Property, s1
·       Animate+ inanimate things
·       Money
·       Electricity, energy, gas, water
·       Plants, animals (except wild animals, cf ss1(e), s392(1));
·       Any property real or personal, legal, or equitable including things in action and other intangible property (s1)
·       CANNOT STEAL: things do not have an owner (e.g. wild animals)

1.3       Property belonging to another (“of any person”)

Property that does not belong to anyone (or has been abandoned) and property which accused owns and in which nobody else has a proprietary interest cannot be stolen

·       Property may be stolen from the owner, including part-owner, s391(2)(a)
·       Property may be stolen from any person who has a special property in the thing, s391(2)(b), (2AA)
·       Property may be stolen from any person have possession or control, s391(7)
·       Having a relevant interest in the thing, s396
·       Property may be stolen by the owner, if others have proprietary rights in or others possess the thing, cff s391(7)

Property obtained as a result of mistake

Problem: lack of consent is not an element of stealing in Qld.
Hence: property passes if transferred with consent of the owners, so property may no longer belong to another person

Is it stealing if property passes because of a mistake by the owner?

1) It is not stealing because property has passed and consent (and validity of consent) is irrelevant: R v Potisk
2) But: ownership does not pass (and stealing may arise) if the mistake was a fundamental one: Ilich v R (1987). It is fundamental if it relates
·       To the identity of the person to whom it was transferred
·       To the identity of the thing that is to be delivery
·       To the quantity to be delivered

2.1       Fraudulently, s391(1)

a person is deemed to act fraudulently, s391(2)(a)-(f) [special intentions; exhaustive list]:

(a) an intent to permanently deprive the owner of the thing of it;
(b) an intent to permanently deprive any person who has any special property in the thing of such property;
(c) an intent to use the thing as a pledge or security;
(d) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;
(e) an intent to deal with it in such a manner that it can not be returned in the condition in which it was at the time of the taking or conversion;
(f) in the case of money—an intent to use it at the will of the person who takes or converts it, although the person may intend to afterwards repay the amount to the owner.[6]

2.2       No claim of right, s22(2)

No liability for stealing if at the time of taking or converting, the accused honestly believed he/she was exercising a legal claim of right, s22(2)
= exception to s22(1) that ignorance of law is no excuse

·       Belief has to be honest, not also reasonable
·       Belief is not held if it can be established that the accused acted fraudulently;
·       Belief has to relate to a legal claim of right, not a moral claim: Walden v Hensler (1987)




ROBBERY


Section 409 Definition of robbery

Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen, is said to be guilty of robbery.



Elements


Physical elements
Stealing
Taking or converting
Things capable of being stolen
Belonging to another
Using or Threatening violence, s409

Mental elements
Fraudulently; special intention, s391(1),(2)
Use of violence/threats in order to obtain the thing stolen or to prevent/overcome resistance, s409
No claim of right, s22(2)
Aggravations, s411(2)
·       Armed robbery: accused is or pretends to be armed with an offensive weapon or instrument
·       Accused is in the company of 1 or more others
·       Accused casuses wounds or uses other personal violence




Attempted robbery, s412
Assault with intent to steal, s413[7]







BURGLARY

Section 419 Burglary

(1) Any person who enters or is in the dwelling of another with intent to commit an indictable offence in the dwelling commits a crime.
Maximum penalty—14 years imprisonment.
(2) If the offender enters the dwelling by means of any break, he or she is liable to imprisonment for life.
(3) If—
(a) the offence is committed in the night; or
(b) the offender—
(i) uses or threatens to use actual violence; or
(ii) is or pretends to be armed with a dangerous or
offensive weapon, instrument or noxious substance; or
(iii) isincompanywith1ormorepersons;or
(iv) damages, or threatens or attempts to damage, any property;
the offender is liable to imprisonment for life

(4) Any person who enters or is in the dwelling of another and commits an indictable offence in the dwelling commits a crime.

Maximum penalty—imprisonment for life.



Elements


Physical elements
Entering or being (in a dwelling), ss419(1), 418(2)
Dwelling of another, ss419(1), 1
Mental elements
Intent to commit an indictable offence, s419(1)

Aggravations s419(2),(3),(4)
·       Entering by means of any break
·       Offence committed at night
·       Use or threat of violence
·       Armed burglary
·       Burglary in company
·       Damage of or threat to damage property
·       Actual commission of indictable offence

OFFENCES SIMILAR TO BURGLARY

Entering or being in premises (other than a dwelling) with intent to comit an indictable offence, s 421(1)

Aggravations
            Entering by means of any break
            Actual commission of indictable offence

Possession of things in connection with unlawful entry, s425

Unlawful entry of a vehicle with intent to commit an offence, s427

RECEIVING


Section 433 Receiving tainted property

(1) A person who receives tainted property, and has reason to believe it is tainted property, commits a crime.
Maximum penalty—
(a) if the property was obtained by way of an act constituting a crime—14 years imprisonment; or
(b) if the property is a firearm or ammunition—14 years imprisonment; or
(c) if the offender received the property while acting as a pawnbroker or dealer in second hand goods, under a licence or otherwise—14 years imprisonment; or
(d) otherwise—7 years imprisonment.
(2) For the purpose of proving the receiving of anything it is sufficient to show that the accused person has, either alone or jointly with some other person, had the thing in his or her possession, or has aided in concealing it or disposing of it.




Elements


Physical elements
Receiving
- proof of possession or aiding in concealing suffices

Tainted property
- anything obtained by way of an act constituting an indictable offence

Mental elements
Reason to believe it is tainted property, s 433(1).
Unclear whether the element is assess subjective or objectively
Penalty
Depends on type of property/type of receiving, s 433 (1)(a)-(c)



Offence involving Dishonesty        

Stealing v Dishonesty

Offences of dishonesty overlap with stealing; usually the offences are used when stealing offences cannot be established

Offences under s 408C Criminal Code (Qld)

(1) A person who dishonestly
(a) applies to his or her own use or to the use of any person (misappropriation)
(i) property belonging to another; or
(ii) property belonging to the person, or which is in the person's possession, either solely or jointly with another person, subject to a trust, direction or condition or on account of any other person; or
(b) obtains property from any person; or (dishonestly obtaining property from another)
(c) induces any person to deliver property to any person; or
(d) gains a benefit or advantage, pecuniary or otherwise, for any person; or
(e) causes a detriment, pecuniary or otherwise, to any person; or
(f) induces any person to do any act which the person is lawfully entitled to abstain from doing; or
(g) induces any person to abstain from doing any act which that person is lawfully entitled to do; or
(h) makes off, knowing that payment on the spot is required or expected for any property lawfully supplied or returned or for any service lawfully provided, without having paid and with intent to avoid payment;
commits the crime of fraud.

OBTAINING BY DECEPTION (1(B))


Elements


Physical elements
Includes: to get, gain, receive, or acquire’
Obtaining possession suffices
Obtaining by owner’s mistake is possible

Property, s1
Also includes credit, service, any benefit or advantage…

Mental elements
Dishonesty under common law[8]
S408C(3)(b): conduct may be dishonest even though…

Dishonesty
R v Feely [1973]
Dishonesty is decided by applying the current standards of ordinary decent people
- Dishonesty is decided only objectively                     
R v Ghosh [1982][9]
“a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest... If it was dishonest... then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.’
-> dishonesty is decided objectively and subjectively
Peters v R (1998) HCA
Jury should apply the current standards of ordinary decent people, no instructions, no subjective element needed (in relation to a charge of defrauding the Cth)
R v White
(follows R v Ghosh; but judges were on drugs)



MISAPPROPRATION



Elements


Physical elements
Applying to his or her own use or the use of antoher
-Actual use

Property
Mental elements
Dishonesty
Inducing a person to deliver property
Gaining a financial advantage by deception



Property damage and destruction



WILFUL DAMANGE, s469 Criminal Code


Section 469 Wilful Damage

(1) Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence which, unless otherwise stated, is a misdemeanour, and the person is liable, if no other punishment is provided, to imprisonment for 5 years.
(2) For this section, other than punishment in special cases, clause 11, the destruction or damage of property that is a thing mentioned in section 566(11) is presumed to be done without the owner’s consent until the contrary is proved.
(3) For this section, punishment in special cases, clause 11, the destruction or damage of property is, until the contrary is proved, presumed to be done—
(a)  without the owner’s consent; and
(b)  if the property is fixed in a cemetery or at a crematorium—
(i)  without the lawful consent of the entity (if any) responsible for managing and administering the cemetery or crematorium; and
(ii)  not in the reasonable belief that lawful consent mentioned in subparagraph (i) has been given.


Elements


Physical elements
Property of another

Damage or destruction
Result: accused conduct rendered property ‘imperfect or inoperative’
Mental elements
 Wilful
-> intentional or at least reckless: R v Lockwood; ex parte AG [1981]; R v Hayes [2008]



Defences
Special defences, s458
Consent of owner, authorization, and other special justifications and excuses

General defences
-self defence etc


Penalty
5 years
Higher penalty for special cases listed after s469




[1] Ilich v R (1987); s1(1) Larceny Act 1916 (UK)
[2] s391(1) Criminal Code (Qld)
[3] Vic, s71
[4] comes from Common Law
[5] comes from Common Law
[6] like fuel (mixed up with what is inside the car already)
[7] before liability for attempt
[8] there is no definition under the Code
[9] Qld: R v Laurie; R v Allard; R v Sitek; R v Harvey; R v White

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