Dishonest Acquisition

Contents
1
2
3
4
5
6
7
8
9
10
11
12

Larceny....................................................................................................................2
Aggravated offences................................................................................................7
Robbery...................................................................................................................8
Fraud........................................................................................................................9
Alternative verdicts...............................................................................................14
Forgery and false instruments...............................................................................14
Identity theft and fraud..........................................................................................15
Breaking and entering...........................................................................................17
Electronic offences................................................................................................18
Receiving...............................................................................................................18
Goods in custody...................................................................................................20
Rebirthing cars or boats.........................................................................................21

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1 Larceny
Larceny is a common law offence. The Crimes Act s 117 provides a max penalty of 5 years.
Actus reus

Mens rea

1.
2.
3.
4.

1. Intention to permanently deprive

2. Fraudulently or dishonestly
3. No claim of right

Property capable of being stolen

Property in possession of another
Property taken and carried away
Without the possessors consent

1.1 Actus reus

Requirement 1: Property capable of being stolen

Property generally must be tangible.

Property must be able to be taken and carried away.

The following can be stolen:

Metal, glass and wood fixed to houses or land (Crimes Act s 139)
Trees (Crimes Act s 140)
Domesticated farm animals (Crimes Act ss 4, 126-131)
Domesticated dogs, animals or birds, and fish in private waters (ss 132-133, 502-512)
Cash (Croton)1
Securities (Crimes Act s 134)
Gas (White)2

The following cannot be stolen:

Land, because it cannot taken and carried away

Fixtures, because it cannot be taken and carried away
Wild animals, because it is not in possession (Case of Swans;3 Blade v Higgs)4
Bank deposits, because it is intangible (Croton)5
Electricity, because it is intangible

1 Croton (1967) 117 CLR 326, 330

2 White (1853) Dears 203.
3 Case of Swans (1591) 7 Co Rep 15b.
4 Blade v Higgs (1865) 11 HLC 621.
5 Croton (1967) 117 CLR 326, 330

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Data, because it is intangible (Oxford v Moss)6

Requirement 2: Property in possession of another

Possession has two requirements:
(1) Physical control; and
(2) Intention to maintain physical control.

Property does no need to be possessed legally (Anic).7

Employers and masters have constructive possession of property held by employees

and servants (Williams v Phillips).8 Thus, employees and servants may commit
larceny (Crimes Act s 156).
People may have constructive possession of goods on their land, of which they are
unaware (Hibbert v McKiernan).9

Requirement 3: Property taken and carried away

Any movement is sufficient (Wallis v Lane).10

Mere intention to take is insufficient (Potisk).11

Requirement 4: Without the possessors consent

It does not need to be against the possessors consent (Middleton).12

There is no consent if a licence is breached (Kolosque v Miyazaki).13
There is no consent if a bailment is breached (Crimes Act s 125).

6 Oxford v Moss (1978) 68 Cr App R 183.

7 Anic, Stalianou and Suleyman (1993) 61 SASR 223, 29-33 (Bollen J; King CJ agreeing; Mohr
J semble) (SASC in Banco).
8 Williams v Phillips (1957) 41 Cr App 5.
9 Hibbert v McKiernan [1948] 2 KB 142.
10 Wallis v Lane [1964] VR 293, 295 (Herring CJ).
11 Potisk (1973) 6 SASR 389, 398 (Bray CJ).
12 Middleton (1873) LR 2 CCR 38, 54-55 (Bramwell B).

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There is no consent if an electronic error is exploited (Kennison v Daire).14

1.2 Mens rea

Requirement 1: Intention to permanently deprive

Intention to exercise ownership is sufficient (Foster).15

Intention to return is not a defence (Crimes Act s 118).
Intention to return fungible (e.g. money) is not a defence (Williams;16 Feely).17
Conditional return (e.g. refund fraud) is not a defence (Lowe;18 Sharp).19
It is not a defence if the propertys value is exhausted (e.g. tickets) (Beecham).20
It is not a defence if the propertys nature is changed (Weatherstone;21 Smails).22

13 Kolosque v Miyazaki (unreported, NSWSC, 17 February 1995) (a licence to take goods to

sales registers does not include placing food where they would spoil, or concealing goods
with intention to steal).
14 Kennison v Daire (1986) 60 ALJR 249 (Gibbs CJ, Mason, Wilson, Deane and Dawson JJ)
(HCA) (closed bank account, then withdrew money from ATM that was offline).
15 Foster (1967) 118 CLR 117, 121 (Barwick CJ) (HCA).
16 Williams [1953] 1 QB 660.
17 Feely [1973] 1 QB 530.
18 Lowe v Hooker [1987] Tas R 153, 157-158 (Cosgrove J) (it was not a defence to return
stolen goods a store for refunds).
19 Sharp v McCormick [1986] VR 869 (taking a motor part from work to see if it fit, with
intention to return if it did not fit, was not a defence).
20 Beecham (1851) 5 Cox CC 181.
21 Weatherstone (1987) 8 Petty Sessions Review 3729 (Street CJ) (welding metal rods
prevented the owner from using them again as rods).
22 R v Smails (1957) WN (NSW) 150 (cutting up railway sleepers prevented the owner from
using them as railway sleepers).

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Requirement 2: Fraudulently or dishonestly

Fraudulently and dishonestly are interchangeable (Glenister;23 Macleod).24

Dishonesty is based on current standards of ordinary decent people (Feely).25
Personal advancement is not required but is relevant (Weatherstone).26

Requirement 3: No claim of right

It is a defence if there is a genuine belief of legal (not moral) entitlement to the

property (not the means to recover it) under Australia law (not Indigenous law) (Re
DPP),27 regardless of whether it is an actual legal entitlement (Fuge).28
The defence has an evidentiary burden, and the prosecution has a legal burden (Fuge).
There may be a claim of right to property of equal value (e.g. money) (Fuge).
More property cannot be taken than the claim (Fuge).
For an accessory, the principal must have a genuine claim (Fuge).

1.3 Statutory expansions of larceny

Larceny of a bailee (Crimes Act s 125)
Whosoever, being a bailee of any property, fraudulently takes, or converts, the same, or any
part thereof, or any property into or for which it has been converted, or exchanged, to his
or her own use, or the use of any person other than the owner thereof, although he or she
does not break bulk, or otherwise determine the bailment, shall be deemed to be guilty of
larceny and liable to be indicted for that offence.
The accused shall be taken to be a bailee within the meaning of this section,
although he or she may not have contracted to restore, or deliver, the specific property
23 Glenister [1980] 2 NSWLR 597.
24 Macleod (2003) 214 CLR 230.
25 Feely [1973] 1 QB 530, 538-539, 541 (Lawton LJ), approved in Peters (1998) 192 CLR
493 (HCA).
26 Weatherstone (1987) 8 Petty Sessions Review 3729 (Street CJ).
27 Re DPP Ref No 1 of 1999 (2000) 10 NTLR 1.
28 Fuge (2001) 123 A Crim R 310, 314-315 (Wood CJ at CL).

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received by him or her, or may only have contracted to restore, or deliver, the property
specifically.

Larceny by clerk or servant (Crimes Act s 156)

Whosoever, being a clerk, or servant, steals any property belonging to, or in the possession,
or power of, his or her master, or employer, or any property into or for which it has been
converted, or exchanged, shall be liable to imprisonment for ten years.

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Embezzlement (Crimes Act s 157)

The clerk or servant must possess the property.

If the master or employer has constructive possession, the offence is larceny by clerk

or servant (Crimes Act s 156; Hayward;29 Wright).30

The clerk or servant must be required to give the property to the master or employer
(Gale).31

Whosoever, being a clerk, or servant, fraudulently embezzles, either the whole or any part
of, any property delivered to, or received, or taken into possession by him or her, for, or in
the name, or on the account of, his or her master, or employer, shall be deemed to have
stolen the same, although such property was not received into the possession of such
master, or employer, otherwise than by the actual possession of such clerk, or servant, and
shall be liable to imprisonment for ten years.

Joyriding (Crimes Act s 154A)

(1) Any person who:
(a) without having the consent of the owner or person in lawful possession of a
conveyance, takes and drives it, or takes it for the purpose of driving it, or secreting
it, or obtaining a reward for its restoration or pretended restoration, or for any other
fraudulent purpose, or
(b) knowing that any conveyance has been taken without such consent, drives it or
allows himself or herself to be carried in or on it,
shall be deemed to be guilty of larceny and liable to be indicted for that offence.
(2) For the purposes of this section
"conveyance" means any cart, wagon, cab, carriage, motor car, caravan, trailer, motor
lorry, tractor, earth moving equipment, omnibus, motor or other bicycle, tank or other
military vehicle, or any ship, or vessel, used or intended for navigation, and
drive shall be construed accordingly.
[Maximum penalty: 5 years imprisonment]
[See also, Crimes Act s 154F (stealing motor vehicle or vessel)]

29 Hayward (1844) 1 C&K 518; 174 ER 919.

30 Wright (1858) 7 Cox CC 413.
31 Gale (1877) 2 QBD 141.

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Carjacking (Crimes Act s 154C)

(1) A person who:
(a) assaults another person with intent to take a motor vehicle or vessel and, without
having the consent of the owner or person in lawful possession of it, takes and
drives it, or takes it for the purpose of driving it, or
(b) without having the consent of the owner or person in lawful possession of a motor
vehicle or vessel, takes and drives it, or takes it for the purpose of driving it, when a
person is in or on it,
is liable to imprisonment for 10 years.
(2) A person is guilty of an offence under this subsection if the person commits an offence
under subsection (1) in circumstances of aggravation. A person convicted of an offence
under this subsection is liable to imprisonment for 14 years.
(3) In this section: circumstances of aggravation means circumstances involving any
one or more of the following:
(a) the alleged offender is in the company of another person or persons,
(b) the alleged offender is armed with an offensive weapon or instrument,
(c) the alleged offender intentionally or recklessly inflicts actual bodily harm on any
person.

Fraudulent appropriation (Crimes Act s 124)

Where, upon he 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

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imprisonment for two years, or to a fine of 20 penalty units, or both.

2 Aggravated offences
The aggravated offences have little similarity, and illustrate political responses to specific
events:

Robbery (14 years) (s 94)

Stealing cattle (14 years) (s 126)
Stealing a will (7 years) (s 135)
Stealing in a dwelling house (7 years) (s 148)
Stealing from a person (14 years) (s 94)
Stealing from a shipwreck (10 years) (s 153)
Stealing by clerks and servants (10 years) (s 156)

3 Robbery
Crimes Act s 94
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.
Robbery is larceny, aggravated by force used or threatened to cause victim to part with
property.

The violence used or threatened must be directed to the person, not the property

(Gnosil).32
It is insufficient if violence is used (Delk)33 or threatened (Foster)34 after property is

taken.
There must be an intention to permanently deprive (Salameh).35

32 Gnosil (1824) 1C&P 304, 304.

33 Delk (1999) 46 NSWLR 340.
34 Foster (1995) 78 A Crim R 517.
35 Salameh (1987) 26 A Crim R 353.

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Robbery does not need property to be taking from the victims hands. It is sufficient if
the victim has sufficient care or personal possession of the goods that the they were
constructively in the victims presence (Smith v Desmond).36

Aggravated robbery includes:

Robbery with violence (s 95)

Robbery in company with another person (s 97)
Armed robbery (s 97)
Armed robbery associated with wounding or the infliction of grievous bodily harm (s

98)
Demanding property with intent to steal (s 99)

4 Fraud
Actus reus
Act Deception
Circumstance Dishonesty
Consequence Obtaining property
Obtaining financial advantage
Causing financial disadvantage

Mens rea
Intention or recklessness
Subjective and objective
Intention to permanently deprive
Intention (He Kaw Teh)
Intention (He Kaw Teh) to cause
temporary disadvantage (Murray)

Crimes Act s 192E Fraud

(1) A person who, by any deception, dishonestly:
(a) obtains property belonging to another, or
(b) obtains any financial advantage or causes any financial disadvantage,
is guilty of the offence of fraud.
Maximum penalty: Imprisonment for 10 years.
(2) A persons obtaining of property belonging to another may be dishonest even if the
person is willing to pay for the property.
(3) A person may be convicted of the offence of fraud involving all or any part of a general
deficiency in money or other property even though the deficiency is made up of any
number of particular sums of money or items of other property that were obtained over
a period of time.
(4) A conviction for the offence of fraud is an alternative verdict to a charge for the offence
of larceny, or any offence that includes larceny, and a conviction for the offence of
larceny, or any offence that includes larceny, is an alternative verdict to a charge for the
offence of fraud.
36 Smith v Desmond [1965] AC 960, 998 (Lord Pearce) (robbery occurred when money was
stolen when the employees were bound, blindfolded and locked in a room 30 metres away).

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4.1 Act: deception

Crimes Act s 192B Deception
(1) In this Part, deception means any deception, by words or other conduct, as to fact or
as to law, including:
(a) a deception as to the intentions of the person using the deception or any other person,
or
(b) conduct by a person that causes a computer, a machine or any electronic device to
make a response that the person is not authorised to cause it to make.
(2) A person does not commit an offence under this Part by a deception unless the
deception was intentional or reckless.

Actus reus
Words

Lies, partial truths, or omitting facts to create a false impression are sufficient (M).37
Saying that a 4-carat diamond was 7 carats was sufficient (Patmoy).38
Puffery is insufficient (Bryan).39

Conduct

Conduct without words is sufficient.

Wearing a uniform to gain store credit was sufficient (Barnard).40
Obtaining an unauthorised response from a computer or ATM is sufficient (s 192B(1)

(b)).
Changing ones intention to pay for a meal was sufficient (Ray).41
An excessively high quotation is sufficient (Silverman).42

37 M [1980] 2 NSWLR 195.

38 Patmoy (1944) 62 WN (NSW) 1.
39 Bryan (1857) Dears B 265.
40 Banard (1837) 7 C&P 784.
41 DPP v Ray [1974] AC 370.
42 Silverman (1988) 86 Cr App R 213 (UKCA).

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Mens rea

Intention or recklessness (s 192B(2))

Recklessness is awareness of the possibility that the behaviour is deceptive (Stokes).43

4.2 Consequence
Option 1: Obtain property from another
Actus reus
Crimes Act s 192C Obtaining property belonging to another
[Crimes Act s 4 defines property to include tangible and intangible property, incl. land]
(1) For the purposes of this Part, a person obtains property if:
(a) the person obtains ownership, possession or control of the property for himself or
herself or for another person, or
(b) the person enables ownership, possession or control of the property to be retained
by himself or herself or by another person, or
(c) the person induces a third person to do something that results in the person or
another person obtaining or retaining ownership, possession or control of the
property.
(3) For the purposes of this Part, property belongs to a person if:
(a) the person has possession or control of the property, or
(b) the person has a proprietary right or interest in the property (not being an equitable
interest arising only from an agreement to transfer or grant an interest or from a
constructive trust).
If property is subject to a trust, the persons to whom it belongs include any person
having a right to enforce the trust.

Mens rea
Crimes Act s 192C Obtaining property belonging to another
(2) A person does not commit an offence under this Part by obtaining or intending to
obtain property belonging to another unless the person intends to permanently deprive
the other of the property.
(4) A person obtaining property belonging to another without meaning the other
permanently to lose the thing itself has, nevertheless, the intention of permanently
depriving the other of it if the persons intention is to treat the thing as his or her own to
dispose of regardless of the others rights. A borrowing or lending of the property may
amount to so treating it if, but only if, the borrowing or lending is for a period and in
circumstances making it equivalent to an outright taking or disposal.
43 Stokes and Difford (1990) 51 A Crim R 25, 40.

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(5) Without limiting the generality of subsection (4), if:

(a) a person has possession or control (lawfully or not) of property belonging to another,
and
(b) the person parts with the property under a condition as to its return that the person
may not be able to perform, and
(c) the parting is done for the purposes of his or her own and without the others
authority,
the parting amounts to treating the property as his or her own to dispose of regardless
of the others rights.

Option 2: Obtain financial advantage

Actus reus
Crimes Act s 192D Obtaining financial advantage or causing financial disadvantage
(1) In this Part, obtain a financial advantage includes:
(a) obtain a financial advantage for oneself or for another person, and
(b) induce a third person to do something that results in oneself or another person
obtaining a financial advantage, and
(c) keep a financial advantage that one has,
whether the financial advantage is permanent or temporary.

In Victoria, financial advantage is not given a narrow construction (Walsh;44

Matthews).45
Advantage means a better or superior position, or to benefit or profit (Murphy).46
The financial advantage may be held transitorily (Murphy).47
The financial advantage must be able to be valued in monetary terms (Coelho).48

Mens rea

Mens rea is not provided by statute; thus intention should be inferred (He Kaw Teh).

44 Walsh (1990) 52 A Crim R 80.

45 Matthew v Fountain [1982] VR 1045.
46 Murphy [1987] Tas R 178, 183 (Nettlefold J).
47 Murphy [1987] Tas R 178, 185 (Wright J).
48 Coelho v Durbin (unreported, NSWSC, 29 March 1993) (Badgery-Parker J) (the benefit of
a motor vehicle registration was not financial).

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Option 3: Obtain financial disadvantage

Actus reus
Crimes Act s 192D Obtaining financial advantage or causing financial disadvantage
(2) In this Part, cause a financial disadvantage means:
(a) cause a financial disadvantage to another person, or
(b) induce a third person to do something that results in another person suffering a
financial disadvantage,
whether the financial disadvantage is permanent or temporary.

Mens rea

Mens rea is not provided by statute; thus intention should be inferred (He Kaw Teh).
Murphy49 suggests that there need not be intention to cause permanent disadvantage.

4.3 Causation

There must be a causal connection between the deception and the consequence (Ho).50
There is no causation if the victim is indifferent about the deception (Clemesha).51
There is no causation if the victim realises the deception, even if the property is given.

4.4 Dishonesty
Due to the grammatical structure of s 192E (by any deception, dishonestly obtain or cause), the
obtaining and causing must be dishonest, not the deception (Salvo;52 Love53 approved in
Peters).54

49 Murphy [1987] Tas R 178.

50 Ho and Szeto (1989) 39 A Crim R 145, 146-148 (Maxwell, Hunt and McInerney JJ)
(NSWCCA).
51 Clemesha [1978] WAR 193 (WAFC) (victim did not care that defendant used false name
and address to hire plate compacter).
52 Salvo [1980] VR 401.
53 Love (1989) 17 NSWLR 608.
54 Peters (1998) 192 CLR 493.

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Crimes Act s 4B Dishonesty

(1) In this Act: dishonest means dishonest according to the standards of ordinary people
and known by the defendant to be dishonest according to the standards of ordinary
people.
(2) In a prosecution for an offence, dishonesty is a matter for the trier of fact.

Feely55 held that dishonest was determined by the jury and should not be defined by the
court.

Ghosh56 held that there are two steps:

(1) Was it dishonest according to the ordinary standards of reasonable and honest
people?
(2) Did the accused realise that it dishonest according to those standards?

Peters57 rejected Ghosh, and held that there are two steps:
(1) Did the accused have the alleged knowledge, belief or intention BRD?58
(2) Was the act dishonest?

4.5 Claim of right

It is a defence to believe to have a legal right to obtain the property or financial advantage, or
cause the financial disadvantage (not the legal right to engage in deception) (Love).59

5 Alternative verdicts
Charge
Larceny
Larceny (incl. by clerk or bailee)
Larceny, or crime containing larceny
Embezzlement
Fraud

Section
124
120
192E
163
192E

Alternative verdicts
Fradulent appropriation
Embezzlement
Fraud
Larceny
Larceny, or crime containing larceny

55 Feely [1973] 1 QB 530, 535-541 (Lawton LJ) (EngCA).

56 Ghosh [1982] 1 QB 1053, 1063-1064 (Lord Lane CJ) (EngCA).
57 Peters (1998) 192 CLR 493 (HCA).
58 Beyond reasonable doubt (BRD).
59 Love (1989) 17 NSWLR 608, 614-615 (NSWCCA).

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6 Forgery and false instruments

Crimes Act s 253 Forgery making false document
A person who makes a false document with the intention that the person or another will use
it:
(a) to induce some person to accept it as genuine, and
(b) because of its being accepted as genuine:
(i) to obtain any property belonging to another, or
(ii) to obtain any financial advantage or cause any financial disadvantage, or
(iii) to influence the exercise of a public duty,
is guilty of the offence of forgery.
Maximum penalty: Imprisonment for 10 years.
Crimes Act s 250 False document meaning
[False documents must tell a lie about itself. Containing a false statement is insufficient.]
[False documents extent to electronic forms (Interpretation Act 1987 (NSW) s 21)]
(1) For the purposes of this Part, a document is false if and only if, the document (or any
part of the document) purports:
(a) to have been made in the form in which it is made by a person who did not in fact
make it in that form, or
(b) to have been made in the form in which it is made on the authority of a person who
did not in fact authorise its making in that form, or
(c) to have been made in the terms in which it is made by a person who did not in fact
make it in those terms, or
(d) to have been made in the terms in which it is made on the authority of a person who
did not in fact authorise its making in those terms, or
(e) to have been altered in any respect by a person who did not in fact alter it in that
respect, or
(f) to have been altered in any respect on the authority of a person who did not in fact
authorise its alteration in that respect, or
(g) to have been made or altered on a date on which, or at a place at which, or
otherwise in circumstances in which, it was not in fact made or altered, or
(h) to have been made or altered by, or on the authority of, a person who did not in fact
exist.
(2) For the purposes of this Part, a person is to be treated as "making a false document"
if the person alters a document so as to make it false within the meaning of this section
(whether or not it is false in some other respect apart from that alteration).
(3) For the purpose of the application of this section, a document that purports to be a true
copy of another document is to be treated as if it were the original document.

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7 Identity theft and fraud

Crimes Act 1900 (NSW)
Crimes Act s 192I Definitions
In this Part:
deal in identification information includes make, supply or use any such information.
identification information means information relating to a person (whether living or
dead, real or fictitious, or an individual or body corporate) that is capable of being used
(whether alone or in conjunction with other information) to identify or purportedly identify
the person, and includes the following:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)

a name or address,
a date or place of birth, marital status, relatives identity or similar information,
a driver licence or driver licence number,
a passport or passport number,
biometric data,
a voice print,
a credit or debit card, its number or data stored or encrypted on it,
a financial account number, user name or password,
a digital signature,
a series of numbers or letters (or both) intended for use as a means of personal
identification,
(k) an ABN.
Crimes Act s 192J Dealing with identification information
A person who deals in identification information with the intention of committing, or of
facilitating the commission of, an indictable offence is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
Crimes Act s 192K Possession of identification information
A person who possesses identification information with the intention of committing, or of
facilitating the commission of, an indictable offence is guilty of an offence.
Maximum penalty: Imprisonment for 7 years.
Crimes Act s 192L Possession of equipment etc to make identification documents or
things
A person who:
(a) possesses any equipment, material or other thing that is capable of being used to
make a document or other thing containing identification information, and
(b) intends that the document or other thing made will be used to commit, or to

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facilitate the commission of, an indictable offence,

is guilty of an offence.
Maximum penalty: Imprisonment for 3 years.
Crimes Act s 192M Miscellaneous provisions
(1) This Part does not apply to dealing in a persons own identification information.
(2) It is not an offence to attempt to commit an offence against this Part.
(3) This Part applies to a person who intends to commit an indictable offence even if
committing the offence concerned is impossible or the offence concerned is to be
committed at a later time.
(4) (4) Section 309A of the Criminal Procedure Act 1986 enables a victim of an offence
against this Part to obtain a certificate from a court that such an offence has been
committed to assist with problems the offence has caused in relation to the victims
personal or business affairs.

Criminal Code 1995 (Cth)

s 480.1 Personal financial information mean information relating to a person that may

be used to access funds, credit or other financial benefits. For constitutional reasons,
funds are restricted to financial institutions under the Banking Act 1959 (Cth) and
constitutional corporations.
s 480.4 Dishonestly obtaining or dealing in personal financial information without

consent
s 480.5 Possessing or controlling anything with intent to use by anyone to commit or

facilitate a breach of s 480.4

s 480.6 Importing anything with the same intent

8 Breaking and entering

Offences

Break and enter with intent to commit serious indictable offence (10 years) (s 113).
Break and enter with commission of serious indictable offence (14 years) (s 112).
Enter and remain on building or land with intent to commit indictable offence (7 years) (s 114(1)

(d)).
Enter dwelling house with intent to commit serious indictable offence (10 years) (s 111).
Enter dwelling house with intent and break out (14 years) (s 109).
Enter dwelling house with serious indictable offence and break out (14 year) (ss 109,

112).
Stealing in a dwelling house (7 years) (s 148).

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Aggravated versions

Aggravated and specially aggravated versions (ss 109, 111, 112, 113).
Special aggravations include wounding, malicious infliction GBH, or dangerous weapons.
Aggravating circumstances include offensive weapons or instruments, in company,

corporal violence, intentional or reckless infliction of ABH, depriving liberty, or knowing

that someone was in the building.
When someone is in a building, defendants are presumed to know, unless they can prove
reasonable grounds for believing that there was no one (s 105A(2A)).

Breaking

Further opening a partly open door or window is not breaking.

Opening a closed window or door is breaking.
Gaining entry by false pretence is breaking (Boyle).60

9 Electronic offences

Summary offence of accessing restricted data (2 years) (s 308H)

Indictable offence of unauthorised access or manipulating data, intentionally or

recklessly:
(1) Facilitating offence punishable by at least 5 years (s 308C);
(2) Causing data modification, affecting its reliability, security or operation (s 308D);
(3) Impairing electronic communication on computer networks or the internet (s
308E).
Production, supply or possession of data with intent to commit or facilitate offences under

ss 308C-308E (ss 308F, 308G).

Summary offence of impairing data on computer data storage device (s 308I).
Access is unauthorised if beyond a specified purpose (Gilmour;61 Murdoch).62

10 Receiving
Crimes Act ss 188-189
Crimes Act s 188 Receiving stolen property where stealing a serious indictable offence

60 Boyle [1954] 2 QB 292 (pretending to be a BBC inspector locating radio disturbances).

61 DPP v Gilmour (1995) 134 ALR 631.
62 DPP v Murdoch [1993] 1 VR 406.

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(1) Whosoever receives, or disposes of, or attempts to dispose of, any property, the stealing
whereof amounts to a serious indictable offence, knowing the same to have been stolen,
shall be guilty of a serious indictable offence, and may be indicted, either as an accessory
after the fact, or for a substantive offence, and in the latter case whether the principal
offender has been previously tried or not, or is amenable to justice or not, and in either case
is liable:
(a) if the property is a motor vehicle or a motor vehicle part, or a vessel or a vessel
part, to imprisonment for 12 years, or
(b) in the case of any other property, to imprisonment for 10 years.
Crimes Act s 189 Receiving stolen property where stealing a minor indictable offence
Whosoever receives, or disposes of, or attempts to dispose of, any property, the stealing
whereof is a minor indictable offence, knowing the same to have been stolen, shall be guilty
of a minor indictable offence, and whether the person guilty of the principal offence has been
previously tried or not, or is amenable to justice or not, shall be liable to imprisonment for
three years.

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Common law requirements

Statute does not define the word receives. The common law has three elements:
1. Stolen property
It must not be returned to the victim.

It cannot be in police possession, but can be in temporary custody (Villensky;63

Alexander).64

2. Receiving that property

The defendant must take possession, not merely custody (Fien;65 Hobson).66
The defendant may jointly possess it with the thief (Gleed).67
The defendant may constructively possess it through an employee or accomplice
(Miler).68

A defendant without possession may still be guilty of disposal (ss 188-189).

3. With knowledge that the property was stolen

At common law, belief that the property was stolen is sufficient.
Under ss 188-189, accepting the truth that it was stolen is sufficient (Raad).69

63 Villensky [1892] 2 QB 597.

64 Alexander and Keely [1981] VR 227.
65 Fien [1962] NSWR 134.
66 Hobson v Impett (1957) 41 Cr App R 138.
67 Gleed (1916) 12 Cr App R 3.
68 Miler and Conners (1854) 6 Cox CC 353.
69 Raad [1983] 3 NSWLR 344 (NSWCCA).

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Suspicion (Raad; Hall)70 and wilful blindness (Raad; Schipanski;71 Dykyj;72

McConnell)73 are insufficient but may indicate the defendants actual state of
mind.
The belief must exist when receiving the property, not after (Balough).74
Court may imply a requirement that the receiving by felonious (Balough;
Matthews).75

70 Hall (1985) 81 Cr App R 260 (UKCA).

71 Schipanski (1989) 17 NSWLR 618.
72 Dykyj (1993) 29 NSWLR 672.
73 McConnell (1993) 69 A Crim R 39.
74 Balough (1955) 72 WN 108.
75 Matthews [1950] 1 All ER 137 (Defendant knowingly received stolen property, with
intention to hand it to police. Defendants later decision to keep the property did not make the
receiving felonious.)

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Recent possession
The jury may infer that the defendant knew that the property was stolen if:
1. The property was recently stolen; and
2. There is no reasonable explanation of how the defendant got possession.

Possession has an expanded meaning (McCarthy and Ryan;76 Cross).77

Recency will depend on the property and the circumstances (Bellamy;78 Sinanovic).79
Bruce80 clarified that recent possession did not curtail the defendants right to
silence, because the jury may make an inference from unexplained fact, and failing to
explain is not an admission of guilt.

Persons unknown
It is possible to commit larceny, or receive property from, persons unknown, but there must
be evidence that the goods belonged to someone (Isaacs;81 Trainer).82

11 Goods in custody
Crimes Act s 527C Persons unlawfully in possession of property
(1) Any person who:
(a) has any thing in his or her custody,
(b) has any thing in the custody of another person,
(c) has any thing in or on premises, whether belonging to or occupied by himself or
herself or not, or whether that thing is there for his or her own use or the use of
76 McCarthy and Ryan (1993) 71 A Crim R 395.
77 Cross (1995) 84 A Crim R 242.
78 Bellamy [1981] 2 NSWLR 727.
79 Sinanovic [2000] NSWCCA 395 (the acquisition of a ring worth $1500 seven months ago
was considered recent).
80 Bruce (1987) 74 ALR 219.
81 Isaacs (1884) 5 LR (NSW) 369, 372 (Marin CJ).
82 Trainer (1906) 4 CLR 126, 133-134 (Griffith CJ).

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another, or
(d) gives custody of any thing to a person who is not lawfully entitled to possession of
the thing,
which thing may be reasonably suspected of being stolen or otherwise unlawfully
obtained, is liable on conviction before the Local Court:
(a) if the thing is a motor vehicle or a motor vehicle part, or a vessel or a vessel part, to
imprisonment for 1 year, or to a fine of 10 penalty units, or both, or
(b) in the case of any other thing, to imprisonment for 6 months, or to a fine of 5
penalty units, or both.
(1A) A prosecution for an offence under subsection (1) involving the giving of custody of a
motor vehicle to a person who is not lawfully entitled to possession of the motor vehicle
may be commenced at any time within 2 years after the date of commission of the
offence.
(2) It is a sufficient defence to a prosecution for an offence under subsection (1) if the
defendant satisfies the court that he or she had no reasonable grounds for suspecting
that the thing referred to in the charge was stolen or otherwise unlawfully obtained.
(3) In this section:
"motor vehicle" has the same meaning as it has in Division 5A of Part 4.
"premises" includes any structure, building, vehicle, vessel or place, whether built on
or not, and any part of any such structure, building, vehicle, vessel or place.

For sub-ss (1)(a)-(c), the defendant must have possessed the goods when arrested

(English).83
For sub-s (1)(d), custody may be temporary or permanent, and includes sales (Gilroy).84
Reasonable suspicion is determined by the magistrate objectively (regardless of the

polices opinion) at the time of the decision (not when arresting or charging) (Haken).85
Being stolen or otherwise unlawfully obtained does not need to be the only, or even

most likely, explanation (Chan;86 Madden).87

The prosecution does not need to specify a particular offence (Haken; Chan).88

83 English (1989) 17 NSWLR 149 (NSWCCA).

84 Gilroy v Jebara (1992) 29 NSWLR 20 (Abadee J).
85 Haken v Johnson (unreported, NSWSC, 15 October 1993) (Wood J).
86 Chan (1992) 28 NSWLR 421.
87 Madden (1995) 85 A Crim R 367 (NSWCCA).
88 Chan (1992) 28 NSWLR 421.

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Grant89 rejected a case where money was withdrawn from a bank account which was

reasonably suspected of receiving proceeds of crime previously.

Anderson90 accepted a case where unexplained money was found hidden in a car.

12 Rebirthing cars or boats

Rebirthing cars or boats is an offence under the Crime Act s 154G (14 years).

89 Grant (1981) 147 CLR 503, 509 (Gibbs CJ, Mason, Aickin and Wilson JJ), 511 (Murphy
J).
90 Anderson v Judges of District Court of NSW (1992) 27 NSWLR 701, 703-704, 714-717
(Kirby J; Meagher and Sheller JJA concurring) (NSWCA).

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