Liability 246(1)

Question 1

Receiving

Section and Penalty

Answer 1

Section 246(1), Crimes Act 1961

> $1000 - 7 Years Imprisonment
$500 - $1000 - 1 Year Imprisonment
< $500 - 3 Months Imprisonment

Question 2

Receiving

Ingredients

Answer 2

.1 Receives

.2 Any property

.3 Stolen
OR
Obtained by any other imprisonable offence

.4 Knowing that property to have been stolen or obtained by any imprisonable offence
OR
Being reckless as to whether that property had been stolen or so obtained

Value

Question 3

.1 Receives

Answer 3

Receiving:
Receiving is complete as soon as the offender has, either exclusively or jointly with the thief or any other person, possession of, or control over, the property or helps in concealing or disposing of the property.
Sect. 246(3), Crimes Act 1961
_____

Possession:
Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, 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.
R v Cox
_____

There are four elements of possession for receiving:
(a) awareness that the item is where it is;
(b) awareness that the item has been stolen;
(c) actual or potential control of the item; and
(d) an intention to exercise that control over the item.
Cullen v R
_____

Possession:
May be actual or potential
_____

Actual Possession:
Actual possession arises where the thing in question is in a person’s physical custody or control.

OR

Potential Possession:
Potential possession arises when the person has the potential to have the thing in question in their control.

Question 4

.2 Any property

Answer 4

Property:
Includes real or personal property, and any estate or interest, money, electricity, and any debt, and any thing in action, and any other right or interest.
Sec. 2, Crimes Act 1961
_____

The property received must be the property stolen or illegally obtained (or part thereof), and not some other item exchanged or which are the proceeds.
R v Lucinsky

Question 5

.3 Stolen

Answer 5

Theft:
Dishonestly and without claim of right, taking any property with intent to deprive any owner permanently of that property or of any interest in that property.
Sec. 219(1), Crimes Act 1961

Question 6

.3 Obtained by any other imprisonable offence

Answer 6

Obtain:
Means obtain or retain for himself or herself or any other person.
Sec. 217, Crimes Act 1961
_____

An imprisonable offence:
Normal meaning - any offence punishable by a term of imprisonment.

Question 7

.4 Knowing that property to have been stolen or obtained by any imprisonable offence

Value

Answer 7

“Knowing” means “knowing, or correctly believing”… belief must be a correct one, where the belief is wrong a person cannot know something:
Simester and Brookbanks
_____

A guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.
R v Kennedy
_____

Property:
Includes real or 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.
Sec. 2, Crimes Act 1961

Value of the Property
The property value is essential to the sentence as per section 247, Crimes Act 1961.

Question 8

.4 Being reckless as to whether that property had been stolen or so obtained

Value

Answer 8

Reckless:
Recklessness means the conscious and deliberate taking of an unjustified risk. It involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk.
R v Harney
_____

Property:
Includes real or 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.
Sec. 2, Crimes Act 1961

Value of the Property
The property value is essential to the sentence as per section 247, Crimes Act 1961.