Week 10: Property Offences 1 (8th May)

What are property offences?

 Larceny / theft / stealing

 Fraud / obtaining by deception / embezzlement

 Burglary / breaking and entering / unlawful entry with intent

 Robbery

• Difference between robbery and stealing – robbing is stealing with violence

 Extortion / bribery

 Criminal damage / vandalism

 Computer hacking / computer misuse

 Copyright piracy / Trade mark counterfeiting

 Dealing in stolen goods

 Forgery / uttering

• Uttering – attempting to pass on forged documents

Property offences in Australian Jurisdictions

 There are four different approaches to property offences in Australia

o In NSW, the longstanding legislative offences in the Crimes Act 1900 (NSW) are
based on the common law of larceny (only common law jurisdiction for larceny).
On February 22, 2010, the Crimes Amendment (Fraud, Identity and Forgery
Offences) Act 2009 (NSW) inserted a few new definitions as well as some fraud
offences into the Crimes Act, but the bulk of offences (based on larceny) remain
unchanged.
o Legislative/Code offences directly based on the English Theft Act 1968 (Vic, SA
and NT).
o Griffith Code property offences based on larceny (in jurisdictions that have
Criminal Codes based on the Draft Code developed by Sir Samuel Griffith in
1897 - Qld, WA, Tas).
o Code offences based on the MCC - the provisions of which were themselves
based on the Theft Act 1968 (UK) (ACT and Cth).
 MCC (based on English Theft Act 1968) – for uniform criminal law jurisdiction. Some
adopted and some didn’t.

ONLY LEARNING ACT PROPERTY OFFENCES AND NOT NSW ONES

History of ACT property offences

 Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Act 2004 (ACT)
added Chapter 3 to Criminal Code 2002 (ACT)
 In force in ACT from 9 April 2004
 Replaced previous property offences in Crimes Act 1900 (ACT) (based on Theft Act 1968
(UK) offences)
 Based on Model Criminal Code property offence provisions which are themselves also
based on offences in Theft Act 1968 (UK)

What is a code?
 Matthew Goode – Definition of code
o [A Criminal Code is a] pre-emptive, systematic, and comprehensive enactment of
the whole field of law. It is pre-emptive in that it displaces all other law and its
subject areas save only that which the Code excepts. It is systematic in that all of
its parts arranged in an orderly fashion and stated with a consistent terminology,
form an interlocking, integrated body, revealing its own plan and containing its
own methodology. It is comprehensive in that it is sufficiently inclusive and
independent to enable it to be administered in accordance with its own basic
policies
 A criminal code is intended to be complete, in the sense, it:
o pulls together all the laws in a specific area
o internally consistent – all the principles of criminal responsibility (definitions,
elements and etc) that we use in NSW by going to the common law are contained
within code. Complete in the sense that it covers substantive law and contains all
the general/interpretive principles of criminal responsibility that is in the common
law

Current state of ACT Criminal Law

 Incomplete Criminal Code 2002 (ACT) operating in parallel with Crimes Act 1900
(ACT)
 Criminal Code 2002 consists of:
Chapter 1 (codification), Chapter 2 (principles of criminal responsibility), Chapter 3,
(Theft, Fraud, Bribery and related offences), Chapter 4 (Property Damage and
Computer Offences), Chapter 6 (Serious Drug Offences), Chapter 7 (Administration of
Justice Offences) and a regulation making power in Chapter 8.
 Offences against the person (which will eventually be in Chapter 5 of the CC (ACT)) and
a variety of other offences are still currently located in the Crimes Act 1900 (ACT).

Criminal Code 2002 (ACT)

 Section 7 Application—ch 2
 This chapter [chapter 2] applies to all offences against this Act and all other offences
against territory laws. [That means all property offences must be interpreted in
light of the principles set out in Chapter 2.]
 Must familiarise with the provisions from chapter 2 that we have extracted in the
“Legislation” Supplementary Materials.

Provisions from Chapter in SMs

Part 2.2 The elements of an offence:
11 Elements
12 Establishing guilt of offences
Division 2.2.2 Physical Elements
13 Definitions - conduct and engage in conduct
14 Physical elements
15 Voluntariness
16 Omissions
Division 2.2.3 Fault elements
17 Fault elements
18 Intention
19 Knowledge
20 Recklessness
21 Negligence
22 Offences that do not provide fault elements

Division 2.2.4 Cases where fault elements are not required

23 Strict liability

24 Absolute liability

Division 2.3.4 Mistake and ignorance

35 Mistake or ignorance of fact - fault elements other than negligence

36 Mistake of fact – strict liability

38 Claim of right

Section 14 Physical elements

A physical element of an offence may be –

(a) conduct; or
(b) a result of conduct; or
(c) a circumstance in which conduct, or a result of conduct occurs.

NB see section 13 for the definitions of conduct and engage in conduct.

Section 13 Definitions–conduct and engage in conduct

In this Act:

conduct means an act, an omission to do an act or a state of affairs.

engage in conduct means-

(a) do an act; or
(b) omit to do an act.

Section 17 Fault Elements

(1) A fault element for a particular physical element may be intention, knowledge,
recklessness or negligence.
(2) Subsection (1) does not prevent a law that creates an offence from providing other fault
elements for a physical element of the offence.

Section 21 Negligence (similar to Nydam test – slightly reworded)

A person is negligent in relation to a physical element of an offence if the person’s conduct

merits criminal punishment for the offence because it involves-

(a) such a great falling short of the standard of care that a reasonable person would exercise
in the circumstances; and

(b) such a high risk that the physical element exists or will exist.

Main principles re interpreting Codes (see Kirby J in Barlow (1997) 188 CLR 1 and
Charlie (1999) 199 CLR 387)

1. A code is a piece of legislation so interpretation legislation applies.

2. The first loyalty is to the Code, it must be interpreted in a way that is internally consistent
[and s 7 of the Criminal Code 2002 (ACT) tells us that it is particularly important
that it is interpreted consistently with the general principles contained in Chapter 2].
3. The pre-existing common law is relevant if there is ambiguity, technical or special
meaning. Specifically, when the Code employs words and phrases that are
conventionally used to express a general common law principle, it is permissible to
interpret the statutory language in the light of decisions expounding the common law,
including decisions that come after the Code.
 Example: no definition of assault in the commonwealth code, so turn to the
common law for definition
4. Where alternative constructions are possible, the HC will interpret Codes in such a way as
to achieve consistency between jurisdictions.
Week 10: Property Offences 1 (11th May)

Common Law Larceny

(a) an asportation – that is, a taking and carrying away (although the slightest movement of
every part of the object suffices);

(b) of property capable of being stolen – that is, personal and not real property which is
physical and tangible (a chattel) and not, for example, information from a computer;

(c) which belonged to another (although generally it could be stolen from someone who was
in possession of it);

(d) without the consent of the owner;

(e) without a claim or colour of right (a mistaken belief that he or she has a legal right to
the property); and

(f) with a “fraudulent intent” (basically defined as an intent to permanently deprive the
victim of his/her property).

 First four points are physical elements (actus reus) and last two is fault element (mens
rea)
 Notwithstanding that it will be replaced later/consensually handed over to someone

Questions on Larceny

Question 1: What if you are passing my room and see the exact book you need to complete an
assignment on my bookshelf. You take the book thinking that after the weekend you will slip
it back on my bookshelf and I will probably be none the wiser. Have you committed larceny?

At the moment I take the book, my intention is to return it to the bookshelf. So not
larceny. No mens rea.

Question 2: What if at the time you take the book you intend to rip out the chapters that are
useful to you and return the rest of the book?

Even if returning the book, but not returning the particular chapters and returning in
different form. (Richards 1844 case – intended to deprive the employer in the axle form -
chattle)

Question 3: Someone borrows a car for a joy ride intending to return it after they have had
some fun. Is this larceny?

Committed larceny of the petrol but not the car.

ACT Property Offences

Chapter 3 of the Criminal Code 2002 (ACT)

Part 3.1 – Interpretation

Part 3.2 – Theft and related offences

• s308 – Theft (indictable offence)

• s321 – Minor theft (summary offence)

Part 3.3 – Fraudulent conduct

• s326 – Obtaining property by deception

• s332 – Obtaining financial advantage by deception

Part 3.4 – False and misleading statements etc.

Part 3.5 – Blackmail

Part 3.6 – Forgery and related offences

Part 3.7 – Bribery and related offences

Part 3.8 – Impersonation etc.

 Indictable offence – tried in court with jury. Jury – trier of fact and judge trier of law
 Summary offence – tried in magistrate court and judge is the trier of law and facts.

Section 308 – Theft (Indictable offence)

308 Theft

A person commits an offence (theft) if the person dishonestly appropriates property

belonging to someone else with the intention of permanently depriving the other person of the
property.

Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.

Note For alternative verdict provisions applying to this offence, see s 370, s 371 and s 372. (ie
when charged with wrong provisions)

Section 321 – Minor Theft (Summary offence)

321 Minor theft

(1) A person commits an offence (also theft) if—

(a) the person dishonestly appropriates property belonging to someone else with the intention
of permanently depriving the other person of the property; and

(b) the property has a replacement value of $2 000 or less when it is appropriated.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(2) Absolute liability () applies to subsection (1)(b).

(3) This section does not prevent a person being charged with an offence against section 308
(Theft) if the replacement value of the property appropriated is $2 000 or less (not need to
know or don’t have to be a mistake).

Re interpretation of s 321(2)

Go to: Section 24 – Absolute liability

(1) If a law that creates an offence provides that the offence is an absolute liability offence—

(a) there are no fault elements for any of the physical elements of the offence; and

(b) the defence of mistake of fact under section 36 (Mistake of fact—strict liability) is not
available.

(2) If a law that creates an offence provides that absolute liability applies to a particular
physical element of the offence—

(a) there are no fault elements for the physical element; and

(b) the defence of mistake of fact under section 36 is not available in relation to the
physical element.

(3) The existence of absolute liability does not make any other defence unavailable.

Alternative Verdict Provisions (for mischarges)

Division 3.9.2 Alternative verdicts

370 Alternative verdicts—theft and taking motor vehicle without consent

(1) This section applies if, in a prosecution for theft, the trier of fact is not satisfied that the
defendant committed theft but is satisfied beyond reasonable doubt that the defendant
committed an offence against section 318 (Taking etc motor vehicle without consent).

(2) The trier of fact may find the defendant guilty of the offence against section 318, but only
if the defendant has been given procedural fairness in relation to that finding of guilt.

(3) In this section

theft does not include an offence against section 321 (Minor theft).

371 Alternative verdicts—theft or obtaining property by deception and receiving

(1) If, in a prosecution for theft or obtaining property by deception, the trier of fact is not
satisfied that the defendant committed the offence but is satisfied beyond reasonable doubt
that the defendant committed an offence of receiving, the trier of fact may find the defendant
guilty of receiving, but only if the defendant has been given procedural fairness in relation to
that finding of guilt.

(2) If, in a prosecution for an offence of receiving, the trier of fact is not satisfied that the
defendant committed the offence but is satisfied beyond reasonable doubt that the defendant
committed theft or obtaining property by deception, the trier of fact may find the defendant
guilty of theft or obtaining property by deception, but only if the defendant has been given
procedural fairness in relation to that finding of guilt.

372 Alternative verdicts—theft and obtaining property by deception

(1) If, in a prosecution for an offence of theft, the trier of fact is not satisfied that the
defendant committed the offence but is satisfied beyond reasonable doubt that the defendant
committed an offence of obtaining property by deception, the trier of fact may find the
defendant guilty of obtaining property by deception, but only if the defendant has been given
procedural fairness in relation to that finding of guilt.

(2) If, in a prosecution for an offence of obtaining property by deception, the trier of fact is
not satisfied that the defendant committed the offence but is satisfied beyond reasonable
doubt that the defendant committed an offence of theft, the trier of fact may find the
defendant guilty of theft, but only if the defendant has been given procedural fairness in
relation to that finding of guilt.

(3) In this section:

theft does not include an offence against section 321 (Minor theft).

 All these provisions apply to theft (and not minor theft) because they have the same
maximum sentencing.

Looking for elements of the offence (first thing to do is breaking into constituent
elements – physical element and fault element):

308 Theft

A person commits an offence (theft) if the person dishonestly (fault element) appropriates
property (physical element) belonging to someone else (physical element) with the
intention of permanently depriving the other person of the property (fault element).

Establishing guilt under the ACT Criminal Code

12 Establishing guilt of offences

(1) A person must not be found guilty of committing an offence unless the following is
proved:

(a) the existence of the physical elements that are, under the law creating the offence, relevant
to establishing guilt;

(b) for each of the physical elements for which a fault element is required—the fault element
or 1 of the fault elements for the physical element.

Note 1 See pt 2.6 on proof of criminal responsibility.

Note 2 See pt 2.7 on geographical jurisdiction.

(3) However, unless the law creating the offence otherwise expressly provides, a person can
be found guilty of committing the offence even though, when carrying out the conduct
required for the offence, the person is mistaken about, or ignorant of, the existence or
content of a law that creates the offence.

Note Create, in relation to an offence, is defined in the dictionary.

Elements of theft

 Appropriation (see s 304)

 Property (see Dictionary + Legislation Act 2001)
 Stopped at 35:59