Larceny Flashcards
(26 cards)
Definition ‘Larceny’:
At common law, larceny is committed by a person who, without the consent of the owner, fraudulently and without 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.
S. 4 Crimes Act – Definition ‘Dwelling-House’:
- Any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied.
- A boat or vehicle in or on which any person resides.
- Any building or other structure within the same curtilage as a dwelling-house, and occupied therewith or whose use is ancillary to the occupations of the dwelling-house.
Definition ‘Entry’:
• It is generally understood that entry means moving from the
outside to the inside of premises.
• The insertion of an implement into a building may also
constitute entry.
S. 4 CA – ‘Dangerous Weapon’
• A firearm, or an imitation firearm, within the meaning of the Firearms Act 1996,
• A prohibited weapon within the meaning of the Weapons
prohibition act 1998.
• A spear gun.
S. 4 CA – ‘Offensive weapon or instrument’.
- A dangerous weapon.
- Anything that is made or adapted for offensive purposes, or
- Anything that, in the circumstances, is used, intended for use of threatened to be used for offensive purposes, whether or not is it ordinarily used for offensive purposes or is capable of causing harm.
Definition - ‘Bailee’
An individual who temporarily gains possession, but not
ownership, of a good or other property under a bailment. Eg:
repairman.
Mens Rea of Possession:
Must have both physical and mental aspects of possession
present to proceed with possession related offences.
• Knowledge of the likely nature of the item “I may think the ten mobiles are, or are likely to be, stolen property.”
• Knowledge of the existence of the item “I know there are ten mobile phones in my backpack.”
Doctrine of Recent Possession:
A person, who is in possession of items (property) so soon after a stealing, or a break and enter, has taken place, that no other conclusion should be reached by the Court than that the person is the thief, breaker or the guilty receiver in the absence of any explanation.
The doctrine considers:
• Where you find the alleged offender.
• Time since offence.
• The item the offender is carrying
- Does not include the value of the item.
S. 344A Crimes Act - Attempts:
(1) Subject to this Act, any person who attempts to commit any offence for which a penalty is provided under this Act shall be liable to that penalty.
(2) Where a person is convicted of an attempt to commit an offence and the offence concerned is a serious indictable offence the person shall be deemed to have been convicted of a serious indictable offence.
LARCENY ELEMENTS:
• The accused
• Taking and carrying away
(Usually involves the laying on of the hands.
Amounts to a change of control)
• Property
- Needs to be Tangible
- Have value
- Be personal property
- Real property
- Land and things attached are not included.
• Belonging to another
C – CONTROL – Manual custody or exclusive right to
control. For example, have it on you or with you.
O – OWNERSHIP – Court must be satisfied the property would have an owner although identification of owner may be unknown. Not abandoned. Joint ownership is OK.
P – POSSESSION – Maintain right to the property after giving up control. Lost but not abandoned.
• Without consent
Actual:
Expressed - The owner tells someone it is mine and I don’t
want you to have it.
Implied - If property left in my office drawer or in a car, it is implied the owner does not want anyone to have it.
Constructive:
Finding – Find property and do not make inquiries as to
the owner of the property.
Mistake – Someone gives you property, thinking you were
the owner and you take it without saying anything.
Trick – You deceive someone into giving you the property.
• Without legal claim of right
(Must be a legal right such as being the owner of the property, not a moral right.)
• Fraudulently (dishonestly)
(Temporal coincidence is the important part of this element. You must have the intention to permanently deprive, without consent, claim of right and take that property at that time)
• Intention to permanently deprive the owner
Examples:
- Not returning the property
- Changing the property
- Returning the property conditionally
S. 112(1)(A) CA Breaking etc into any house etc. and committing serious indictable offence:
Can be committed in two ways:
- Break and enter and commit serious indictable offence.
- Already in premises, commit serious indictable offence and break out.
• The accused
• Broke
Actual Breaking – Involves breaking the seal of the premises, interfering with the physical security of the premises.
Constructive Breaking (KFC Tonight)
K – KEY – Keys obtained and used for a purpose they weren’t intended.
F – FRAUD – False representations are made to gain access.
C – CONSPIRACY – You work with another person who has
legal access to the premises and lets you in without the
consent of the owner.
T – THREAT is made to the person with legal ability to give
you access to the property.
• Entered
(It does not need to be the whole body, can be one part or
even an implement if inserted with the intention to commit a serious indictable offence)
• Dwelling-house or other building.
• Committed a serious indictable offence.
Circumstances of Aggravation – Break and Enter (ACUPID):
A – Armed with offensive weapon or instrument.
C – In Company of another offender.
U – Use of corporal violence.
P – Persons (lawful occupants) on premises at the time of the
offence.
I – Infliction of actual bodily harm.
D – Deprivation of liberty.
Break and Enter - Circumstances of Special Aggravation:
- Infliction of GBH or wounding.
* Armed with a dangerous weapon. – can include a replica firearm.
S. 118 CA – Intent to Return Property is No Defence:
• The accused • Who is on trial for larceny • Appropriated the property for Their own use/benefit or, The use/benefit of another • But intended to eventually restore the property • Is not entitled to an acquittal
S. 124 CA – Fraudulent Appropriation – “intent formed afterward”:
- The accused
- Did not originally intend to steal the item
- But later appropriated the property for his or her own use
– The accused is charged with larceny as only a court can
determine this offence.
S. 125 CA – Larceny by a Bailee “agreement breached by bailee”.
• The accused
• Received property from the owner under an agreement
(express or implied)
• Where the accused was a bailee of such property
• Fraudulently (dishonestly)
• Took such property (or part thereof) or converted such
property to his own use or exchanged such property
S. 148 CA – Stealing Property in a Dwelling- House – “148… no break”:
• The accused
• Stole
• Property
• Inside a dwelling-house
• Carried it out of such dwelling-house
• The goods must be under the protection of the house (deposited there for safe custody)
• It is not sufficient that they are under the eye or personal
care of someone who happens to be there. This is determined by a judge.
S. 154A CA – Take and Drive Conveyance:
• The accused
• Without consent
• Took and drove conveyance
• Drive or be carried in/on knowing it has been taken without consent.
-No need to permanently deprive.
-Includes the passengers if they rode in the car knowing it
was taken without consent.
-Definition of conveyance broader than definition of motor vehicle.
S. 154F CA –
S. 154F CA – Steal Motor Vehicle
- The accused
- Stole
- Property (motor vehicle)
- Must prove fraudulently
S. 156 CA – Larceny by Clerk or Servant – “after the till”:
S. 156 CA – Larceny by Clerk or Servant – “after the till”
- The accused
- Was employed as a clerk or servant
- Stole property
- Belonging to the master/employer
– After the till offence, property must have transferred ownership to the master entirely before it is stolen
(customer’s money in till, then into pocket)
S. 157 CA – Embezzlement – “before the till”:
- The accused
- Received property on behalf of their master
- Fraudulently embezzled that property
‘Fraudulently’ – Dishonestly obtained, at the time they took
the item they had the intention to permanently deprive the
property from them
‘Embezzled’ – To constitute embezzlement the property must have been received by the accused on the account of his or her master or employer (customer money straight in pocket).
S. 188 CA – Receiving Stolen Property (Serious Indictable Offence):
• The accused
• Received, disposed of, or attempted to dispose of stolen
property
• The stealing was a serious indictable offence
• The accused knew the property was stolen at the time they
received, disposed of, or attempted to dispose of it.
– It must be shown that the goods were the result of a serious indictable offence – e.g. Larceny.
– The accused must know the status of the property was stolen at the time they received it
– If the accused innocently comes into possession of property then becomes aware of its status and either retains it or attempts to dispose of it, it is still an offence
S. 192E CA – Fraud:
S. 192E CA – Fraud • The accused • Used deception • Obtained property, financial advantage or caused financial disadvantage.
– Fraud includes where the accused forms the intent to
permanently deprive after the item is stolen.
S. 253 CA – Make False Document:
- The accused
- Made a false document
- With the intent to induce the victim to accept it as genuine
