Larceny Pt II

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This article finishes off the element of larceny (notably claim of right and the definition of 'dishonesty') as well as list aggravated larceny offences such as robbery. The principles governing robbery/stealing from the person are as follows:

  • Actus reus: all of the following:
    1. Normal larceny actus reus, and
    2. Stealing must be from the person
      • Constructive possession is sufficient ('in the presence'): Smith v Desmond; Delk.
    3. The accused used or threatened force in order to obtain goods (robbery) or to prevent victim from regaining the goods (stealing from the person): Gnosil.
      • Force must be directed against the person, not property: Smith v Desmond.
  • Mens rea: same as larceny.
  • Max penalty: 14 years imprisonment: s 94.

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. 922-940.

Fraudulently or dishonestly

[1] Australian Courts have held that the terms 'fraudulently' and 'dishonestly' are interchangeable.[2]

  • There is considerable variance in jurisdictions on what the two terms mean.
  • English cases (Feely[3]) have held that the word dishonesty has (1) an everyday meaning and (2) a moral basis. This direction was affirmed in Australia by Peters.[4]
  • A test for dishonesty was prescribed by the English case Ghosh,[5], but it was rejected in Australia by Peters.
  • It is unclear whether Ghosh or Peters is the correct test for determining fraudulence. Neither have been applied in NSW.

Despite a lot of case law on it, there is only one appellate case in NSW dealing with the meaning of ‘fraudulently’, which was Weatherstone.[6] Weatherstone recognises that an element of larceny is that the taking is wrongful or involves a “moral obloquy” (ie, disgrace).

Weatherstone was cited as authority for the meaning of fraudulently in Baartman, which is a NSW case:[7]

  • Facts: ambulance officers answered a call that a man had overdosed. When they arrived and commenced treatment on the accused, an officer noticed a pistol lying under a crib (containing a baby) and took it and placed it on a windowsill. Another officer handed it to police when they arrived shortly afterwards.
  • Held: The court held that there was no moral obloquy or intention to take the gun permanently and therefore no larceny had taken place.

Claim of Right

[8] Broadly, a claim of right is where the accused had a genuine belief that he was acting legally (eg, because he thought the item belonged to him). The “defence” of claim of right is traditionally associated with fraudulence, although it is relevant to many more offences than larceny.

  • The belief acts to negative the element of fraudulence or dishonesty in larceny. This means that the mens rea element of the offence is negatived.

The rationale of the defence was described by Brennan J in Walden v Hensler:[9]

  • It operates in circumstances where “a law proscribes conduct which an ordinary person without special knowledge of the law might engage in the honest belief that he is lawfully entitled to do so.”
  • “To render a person liable to punishment for an offence relating to property when, under a mistake of law, he acts honestly claiming a right to do what he does and when he has no intention to defraud would make the criminal law unjustly oppressive.”

The main authority for claim of right law is Fuge:[10]

  • Facts: the appellant robbed a Hungry Jacks with another person. He alleged that he did so under the belief that the other person was owed money in unpaid wages from that store, and they were rightfully retrieving her money.
  • Held: the court dismissed the appeal saying that the evidentiary burden to raise claim of right was not satisfied. the court defined a claim of right as:
    1. Involving a belief as to the right to property or money in the hands of another.
    2. A genuinely held belief.
    3. The belief does not have to be reasonable but a “colourable pretence” is insufficient.
    4. The belief must be one of legal not just moral entitlement.
    5. The claim must relate to the right to possess the property and not solely to the right to use certain means to recover it.
    6. Claim may extend to choses in action such as banknotes (where the property is the equivalent of another property.)
    7. The claim must extend to all of the property taken and not just to some of it.
    8. In the case of persons charged as accessories, there must be a genuine belief claim by the principal offender in order to exculpate the accessory.
    9. The Crown has the burden of negativing the claim of right when it is sufficiently raised on evidence.

Claim of right and Indigenous defendants

[11] In Goodsell v Yunupingu,[12] an elder member of an indigenous clan successfully relied on a claim of right defence in relation to charges of criminal damage and assault (where the assault was related to the property offence).

  • Facts: a photographer entered the land to take commercial photographs. Yunupingu objected to the photographer taking photos and, when attempts to settle the dispute were unsuccessful, Yunupingu grabbed the camera from the photographer, removed the film and returned the camera. Yunupingu argued that he had a belief in claim of right as a law enforcer of Yolngu law.
  • Held: the rights asserted were not recognised by either statute or common law and in order to acquit, the magistrate should have found that there was a reasonable doubt as to whether or not Yunupingu held a belief that he had a legal right under the law of the Northern Territory (as opposed to Yolgnu law) to damage the film.

Other issues

[13] Courts have grappled with questions of whether criminal liability arises if:

  • The victim hands over the property by mistake and where the defendant has not engaged in deception but realises the victim is mistaken.
  • A person finds lost property but then refuses to return it when they discover the identity of the true owner. This includes issues about whether the finder may deliberately not make inquiries about the true owner.
  • A person take property unintentionally (either because they do not realise they are or because they believe it is their own), if they subsequently realise the property is not theirs, can they be liable for larceny?

See textbook p 927 for reference to cases.

Statutory expansions of larceny

Expansion has often been extremely haphazard and punitive.

Expansion of property in the possession of another

A number of sections in the Crimes Act 1900 either deem certain situations to amount to larceny or create entirely new offences to “fill in the gaps”.

Expanding possession – larceny by bailee

[14] A bailment is when a person who is not a servant or employee is given temporary possession of property by the bailor (such as leaving a cloak in a cloak room, or hiring a car). Larceny by bailee occurs when the person who received the item (the bailee) refuses to give it back when he is supposed to. First introduced in 1473 in the Carrier’s Case, the offence is now contained in the Crimes Act 1900, s 125 and is designed to embrace those who entered into a bailment and at a later time dealt with the bailed object dishonestly.

The offence is rarely prosecuted.

Larceny by servant or employee

[15] From a legal perspective, when a master or employer handed property to a servant or employee, all they legally gave them was custody. Possession was held to constructively remain with the master or employer.

  • Thus, s 156 makes an offence of 'larceny by clerks or servants' which fills this gap The offence and gives a penalty double that of the simple larceny offence.

Embezzlement

[16] Contrary to the above scenario (where a master gives a servant property), servants or employees who received property for their master or employer were held to have received possession. They were therefore protected by possessorial immunity if they retained the property fraudulently. The problem was dealt with by creating a new offence of embezzlement.

  • Embezzlement is the act of taking possession of property for oneself rather than one’s employer.
  • If there is constructive possession by the employer by some act of the employee (such as placing the money in a till or placing property into the employer’s vehicle) then larceny by a servant or employee will apply.
  • Embezzlement is provided for in s 125 and carries a sentence of 10 years imprisonment.

Embezzlement charges are also relatively rare.

Expansion of 'taking without consent' – fraud offences

[17] In Pear,[18] it was held that someone who obtained a loan of a horse by pretending he was going on a journey but who was always intending to sell it, could still be guilty of larceny.

  • Historically the core offence of fraud was that of obtaining property by false pretences, removing the requirement that the taking be without consent if the consent was obtained by deception.
  • These offences have been replaced with the modern versions discussed below.

Expansion of 'intent to permanently deprive'

The common law holds that mere borrowing is not larceny, however, there are some situations where Parliament has considered that persons should still be criminally liable.

Joyriding

[19] Early cases on the temporary use of horses have their modern equivalent in cars. Joyriding is provided for in s 154A, which can be summarised as follows:

  • The taking of a car (or knowingly be carried in a car) without the consent of its lawful possessor for the purpose of driving it, obtaining a reward for it, or any fraudulent purpose is prohibited.

Note that the maximum penalty is the same for that of larceny. Car stealing is a separate offence with a maximum penalty of 10 years’ imprisonment (s 154F).

The offence is usually dealt with summarily.

The National Motor Vehicle Theft Reduction Council estimated that 3 out of 4 vehicles stolen in Australia are stolen for joyriding purposes.[20]

Carjacking

[21] Increased security measures on cars have meant that increasingly cars are being commandeered with the drivers and passengers inside. This constitutes an offence under s 154C.

  • The maximum penalty for carjacking is 10 years’ imprisonment. If the defendant is in company, or is armed or maliciously inflicts actual bodily harm the maximum rises to 14 years.
  • If a person takes a car attempting to flee the scene of a crime but abandons it a short time later, this would amount to an offence under s 154A (joyriding) rather than larceny/carjacking.

Fraudulent appropriation

[22] In order to cover instances such as keeping lost property, s 124 criminalises the retention of property innocently obtained:

Where, upon the trial of a person for larceny, it appears:

  (a) that the person had fraudulently appropriated to his or her own use or that of
   another, the property in respect of which the person is indicted, although the 
   person had not originally taken the property with any fraudulent intent, or

  (b) that the person had fraudulently retained the property in order to secure a
      reward for its restoration,

the jury may return a verdict accordingly, and thereupon the person shall be liable to
imprisonment for two years, or to a fine of 20 penalty units, or both.

“Aggravated” offences

[23] A number of specific offences contain increased maximum penalties for the stealing of particular forms of property where the thief is a person in a particular position of trust or responsibility, or where force is used or threatened. There does not seem to be a logical approach to the addition of aggravating circumstances, suggesting that the legislation arose as a response to a series of political issues.

Examples include:

  • stealing cattle, which is punishable by up to 14 years’ imprisonment (s 126);
  • stealing a will, punishable by up to 7 years’ imprisonment (s 135);
  • stealing a dwelling house, punishable by up to 7 years’ imprisonment (s 148);
  • stealing from the person, punishable by up to 14 years (s 94);
  • stealing from a shipwreck, punishable by up to 10 years (s 153).

The most important aggravated offence is that of robbery.

Robbery

[24] Robbery an aggravated form of larceny, where the accused commits larceny by use or threat of violence. The offence is made out in s 94 of the Crimes Act:

Robbery or stealing from the person

Whosoever:

 robs or assaults with intent to rob any person, or
 
 steals any chattel, money, or valuable security from the person of another,

shall, except where a greater punishment is provided by this Act, be liable to
imprisonment for fourteen years.

Since 'robs' is not further defined, the common law definition (ie, an aggravated form of larceny, involving use or threat of force) remains in force. Thus, robbery involves proving the usual larceny actus reus elements plus:

  • Must be from an actual person.
    • However, constructive possession applies. The property does not have to be literally in the hands of the victim if “the victim has sufficient care or personal possession of the goods to allow the Court to say that constructively the goods were taken in his presence".[25]
    • Constructive possession was also applied in Delk,[26] where the defendant snatched jewellery from a tray placed on a shop counter by a sales assistant.
  • The accused uses or threatens to use force to obtain the goods (or keep the victim from regaining the goods) either before or at the time of the taking.[27]
    • The violence used or threatened must be directed at the person, not merely the property.
    • It is not sufficient that the threat of violence is made after the property is taken - must be before or during.[28]
  • The mens rea elements remain the same as larceny.

Note that the wording of s 94 actually spells out further types of offences which also constitute robbery - assault with intent to rob and stealing from the person.

  • Assault with intent to rob is essentially attempted robbery.
  • Stealing from the person: after the judgment in Delk, which entails that constructive possession constitutes stealing 'from the person', the only difference between stealing from the person and robbery is that the violence is made after the property is taken (as opposed to before or during, which is necessary for robbery).
    • There are also procedural differences, as robbery is strictly an indictable offence.
    • The Court of Criminal Appeal has refused to see that this procedural difference is any indication that stealing from the person is a lesser offence than robbery.[29]

Aggravated robbery offences are:

  • s 95 Aggravated Robbery:
    • Actus reus: Normal robbery + violence OR intentional/reckless actual bodily harm OR deprivation of liberty.
    • Max penalty: 20 years.
  • s 96 Robbery with wounding:
    • Actus reus: Normal robbery + wounding OR grievous bodily harm.
    • Max penalty: 25 years.
  • s 97 Armed robbery / robbery in company:
    • Actus reus: Normal robbery + being armed OR in company.
    • Max penalty: 20 years.
  • s 98 Armed robbery / robbery in company with wounding:
    • Actus reus: Armed robbery / robbery in company + wounding OR grievous bodily harm.
    • Max penalty: 25 years.

Personal robberies are overwhelmingly concentrated in the areas adjacent to the inner city and predominantly affect groups which are already socially and economically disadvantaged. Debate over appropriate sentences has lead to a guideline judgement on sentences for robbery.[30]

Alternative Verdicts

[31] The complexity and overlap of offences means that alternative charges may be available to prosecutors:

  • Larceny = fraudulent appropriation (s 124)
  • Larceny (including as a clerk or by a bailee) = Embezzlement (s 120
  • Larceny or crime containing larceny = Fraud (s 192E)
  • Embezzlement = Larceny (s 163)

Note that some alternative verdicts carry a higher maximum penalty than the offence charged. Is this fair to the defendant?

Reform to Larceny

Theft Act 1968

[32] The 1968 Theft Act in England was intended to simplify the offence but commentators note that the language is still vague and prone to problems with interpretation.

  • English courts have resisted attempts to limit the scope of theft (unlike larceny).
  • The key difference between larceny and theft is that possession is not a defining element of theft and “belonging to another” may include any proprietary right or interest, including equitable interest interests (s 5).
  • Whilst larceny must involve a tangible, moveable object, theft can be of any property other than land (including all forms of choses in action) (s 4).
  • Rather than being “taken and carried away”, appropriation in theft is any interference with proprietal rights (s 3 and see W (a child) v Woodrow,[33] in which the action was as minor as sitting in another person’s car).
  • Consent is not an element of theft.[34]
  • Intention to permanently deprive in theft has been expanded to the person acting with an intention to treat the thing as his own regardless of the other’s rights.[35]
  • The term fraudulently in larceny carries the same meaning as dishonestly in theft.Ghosh
  • Claim of right is the exception to dishonesty in theft (s 2).

“Property” as a boundary of the criminal law

[36] The nature of what is considered property has clearly changed and needs to be clarified by reference to civil law or parliament.

  • In theft, “property” includes “money and all other property, real or personal, including things in action and other intangible property” (Theft Act 1968 (UK) s 4(1)).
  • Parsons[37] confirmed in Australia that cheques were considered property.
  • Judicial decisions have denied the applicability of theft to confidential information (Oxford v Moss)[38] and copyright (dicta in Rank Film Distributors Ltd v Video Information Centre)[39].

Mental elements as a boundary for the criminal law

[40] If property is becoming an increasingly problematic concept, could the solution be a stronger reliance on the mental elements such as dishonesty?

George Fletcher discusses the problematic nature of mental elements in this area in his analysis of the metamorphosis of larceny:[41]

  • The history of larceny may place too much emphasis on ‘looking like a thief’.
  • Mental elements are prone to opposing interpretations.
  • The moral underpinnings of dishonesty makes it a difficult concept to define.

See textbook pp 937-40 for more detailed theoretical discussion on this issue.

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. .
  2. Glenister [1980] 2 NSWLR 597; MacLeod (2003) 214 CLR 230).
  3. [1973] 1 QB 530.
  4. (1998) 192 CLR 493.
  5. [1982] 1 QB 1053.
  6. (1987) 8 Petty Sessions Review 3729.
  7. [1998] NSWSC 653.
  8. Textbook, pp. .
  9. (1987) 163 CLR 561.
  10. (2001) 123 A Crim R 310.
  11. Textbook, pp. .
  12. [1999] AILR 19.
  13. Textbook, pp. .
  14. Textbook, pp. 928-9.
  15. Textbook, pp. 929.
  16. Textbook, pp. 929-30.
  17. Textbook, pp. 930-1.
  18. (1779) 168 ER 208.
  19. Textbook, pp. 931-2.
  20. www.carsafe.com.au
  21. Textbook, pp. 932.
  22. Textbook, pp. 932.
  23. Textbook, pp. 932-3.
  24. Textbook, pp. 933-4.
  25. Smith v Desmond [1965] AC 960, 998.
  26. (1999) 46 NSWLR 340.
  27. “The mere act of taking being forcible will not make this offence highway robbery: to constitute the crime of highway robbery the force used must be either before or at the time of the taking and must be of such a nature to show that it was intended to overpower the party robbed, and prevent his resisting, and not merely to get possession of the property stolen": Gnosil (1824) 1 C & P 304 at 304.
  28. Foster (1995) 78 A Crim R 517.
  29. Hua [2002] NSWCCA 384.
  30. Henry (1999) 46 NSWLR 346.
  31. Textbook, pp. 934.
  32. Textbook, pp. 934-6.
  33. [1988] VR 358.
  34. Hinks [2001] 2 AC 241.
  35. Fernades [1996] 1 Cr App R 175.
  36. Textbook, pp. 936-7.
  37. (1999) 195 CLR 619.
  38. (1978) 68 Cr App R 183.
  39. [1982] AC 380.
  40. Textbook, pp. 937-40.
  41. Fletcher G, “The Metamorphosis of Larceny” (1976) 89 (3) Harv L Rev 469.
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