Dishonest Acquisition

From Uni Study Guides
Jump to: navigation, search

This article is a topic within the subject Criminal Laws.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 900-7.

Introduction

[1] The law relating to property offences or other forms of dishonest acquisition of valuable rights has traditionally been one of the most complex and technical areas of the criminal law because it is based on interference with individual property rights and linked to the civil law of property.

  • NSW law is in a transitional phase of simplification, for example, fraud law was replaced with modern statutory formulations in 2010.
  • The core offence of stealing (larceny) remains a common law offence, supplemented by statutory formulations. NSW is the only Australian jurisdiction to still rely on larceny.

General concepts and issues

Current state of the law in NSW

[2] Significant changes to forgery and fraud law came into force in 2010.

  • Overlapping offences were replaced with a smaller number of general offences and larceny was distinguished from other offences.
  • The statutory definition of dishonesty is a key element of mens rea.
  • The offences can be committed without acquisition of property.
  • NOTE: There appears to be a different meaning given to dishonesty in fraud than that understood to apply to fraudulence/dishonesty in larceny.

Changing ideas of what dishonest acquisition offences should protect

[3] Protecting certain interests and property is the justification for law in this area. Law protecting slavery, for example, has long been repealed because of society’s rejection of the ownership of slaves as an acceptable form of property.

Use and public order

[4] Originally criminal laws in this area were not primarily concerned with protecting private property.

  • Michael Tigar concludes that “The rules against stealing were designed to interdict and punish conduct that risked disturbing public order by interfering with a right more appreciated than that of the right to 'own' something – the right to possess and 'use' it".[5]
  • Private or individual ownership was not the fundamental idea designed to be protected.

Property

[6] The development of a mercantilist and then capitalist society led to an increased emphasis on ownership and on the negative right to exclude others over the older emphasis on the positive rights to use property.

  • Parliament used the criminal law to protect private property and force social change. Many complexities of the law can be seen as a direct result of the changed nature of property and possession.
  • Property rights are a major vehicle by which society is politically ordered. CB Macpherson describes the concept of property a ‘political relationship between people'.[7]
  • A current example of the political basis to property rights is the controversy over the rights to download digitised music from the internet.
  • Debate has often taken place historically about whether criminal law is the appropriate method for punishing property acquisition, or whether it should be a civil matter, or even should be lawful in some cases.

Wealth

[8] New fraud and forgery offences go further than property offences and turn on the concept of causing financial advantage or disadvantage.

  • There is no need to demonstrate property ownership rights to particular items.
  • A holistic approach to assessing an increase or decrease in a person’s wealth may be used instead and can potentially apply to any thing or behaviour which can be reduced to a monetary value.
  • It is misleading therefore, to describe these as property offences, they should instead be described as wealth offences.

Property and the civil law

[9] Property rights are mainly protected by the civil law rights of tort, contract and equity. Criminal law’s role is to intervene to resolve a subset of these breaches, with an emphasis on punishment of the wrongdoer rather than compensation of the victim.

From manifest criminality to dishonesty

[10] The new range of fraud and computer offences represents a radical break from history in that activities that appear to be consensual and lawful are criminalised on the basis that the victim has been deceived and that the defendant has acted dishonestly.

  • There has been a shift in focus from the actus reus to mens rea element.
  • Dishonesty is a moral concept and therefore difficult to define.
  • Manifestly criminal acts are rarely (if ever) lawful, where the person committing the act is usually aware that it is wrong (eg, wounding).
  • In contrast, there is nothing unlawful in obtaining an economic advantage and therefore nothing generally to indicate a criminal state of mind. The mens rea of dishonesty is required.
  • Computer access offences and forgery offences use mental elements other than dishonesty:
    • Forgery: an intention to gain financial advantage or cause financial disadvantage to another by inducing a person to accept a forged document as genuine.
    • Computer access offences: a person is reckless as to whether their actions in accessing or manipulating data are unauthorised.

Does the removal of the ‘moral’ element add certainty at the risk of overcriminalisation?

Technology and crime

[11] Mary McIntosh argues that:[12]

  • Craft crime arises in an urban setting where thieves take small amounts from a large number of individual victims.
  • Project crime arises as industrialisation advances and thieves can steal larger amounts from a smaller group of powerful corporate victims.

She argues that we must not fall into the trap of thinking that increasingly violent property offences are the result of some sort of decline in moral standards as the changes actually result from greater property protection which necessitates more extreme measures to steal.

Appeal court decisions and the “trivial” reality

[13] The vast majority of cases are prosecuted in the Magistrates’ Court, meaning that appeals are unusual scenarios.

  • Only assault was charged more often.
  • Stealing from a person is generally under-reported because there will ordinarily be no insurance incentive and the victim may not believe the police will be able to do anything.
  • Car theft and break and enter are well reported crimes due to insurance requirements.

Summary or indictable?

[14] Offences of dishonest acquisition are overwhelmingly indictable ones, however they effectively have two forms:

  1. The indictable offence with the maximum penalty as stated in the wording of the offence.
  2. The summary form of the offence, with the maximum penalty as prescribed by Table 1 or 2 of the Criminal Procedure Act 1986 (NSW).

See Textbook p 905 for further information.

Overcriminalisation and the proper role of the law

[15] The rise of the internet and other forms of electronic transactions has increased the speed and ease with which transactions can occur and Parliament has responded by making offences generally worded and easier to prove.

Does this constitute overcriminalisation?

End

This is the end of this topic. Click here to go back to the main subject page for Criminal Laws.

References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 900.
  2. Textbook, pp. 900.
  3. Textbook, pp. 901.
  4. Textbook, pp. 901.
  5. The Right of Property and the Law of Theft” (1984) 62 Texas Law Review 1443 at 1448.
  6. Textbook, pp. 902-3.
  7. Mcpherson C B, Property: Mainstream and Critical Positions (1978).
  8. Textbook, pp. 902.
  9. Textbook, pp. 902.
  10. Textbook, pp. 902-3.
  11. Textbook, pp. 903.
  12. McIntosh M, “Changes in the Organisation of Thieving” in S Cohen (ed), Images of Deviance (1971).
  13. Textbook, pp. 904-5.
  14. Textbook, pp. 905-6.
  15. Textbook, pp. 906.
Personal tools
Namespaces

Variants
Actions
Navigation
Toolbox