Theft and Burglary

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The offence of theft is found in s.72 of the Crimes Act 1958 (Vic.). It too has an element of ‘dishonesty’ within it.

It is otherwise known by the term ‘Larceny’. It is committed when a person knowingly takes, without consent or a proper claim in good faith, takes possession (appropriation) with the intention of depriving the person of the thing that has been stolen. Theft can be a wide-ranging offence, from street thievery all the way up the corporate theft. The onus is on the prosecution to assert that the person had the requisite mens rea (intention) that they were indeed thieving the items in dishonesty. This may be difficult to establish in corporate theft cases as seen in R v Senese [2004] VSCA 136 where the accused asserted the defence that he believed that he had the authority to deal with shareholders money in an ‘impugned manner’ as he wished.

If you have been charged with theft it is highly advisable you retain a lawyer.

Handling stolen goods

A person can be charged with handling stolen goods (if they knew it to be stolen) under s.88 of the Crimes Act 1958 (Vic). The wording of the act is as follows:

A person handles stolen goods if knowing or believing them to be stolen
goods he dishonestly receives the goods or brings them into Victoria, or
dishonestly undertakes or assists in bringing them into Victoria or in their
retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so.”

Interestingly, if a wife (and presumably de-facto partners) receive stolen goods from their partners that will not operate as a defence to this crime. The prosecution must prove knowledge that the property is stolen, and willful blindness is not a defence. Obviously they must also prove that the property is indeed stolen property. Lastly, the prosecution must prove that the person charged was in possession of the property.

Burglary

The offence of burglary is contained with s.76 and aggravated burglary is found with s.77. Burglary is the entry of a building as a trespasser with the intention of committing an offence. In old common law cases burglary was exclusively only during the night period (as opposed the daylight offence with the same elements, called housebreaking).

A burglary becomes ‘aggravated’ when a person carries an offensive weapon (usually a gun but it can be explosives). Note that s.77 extends aggravated burglary to ‘imitation’ guns – such as BB guns or potentially anything that could look to be a weapon. The Victorian case DPP v Woodward [2006] VSC 299 was a question of law regarding whether a person charged with aggravated burglary who simply had a ‘pocket knife’ in his short pockets qualified as an offensive weapon. The accused was acquitted.

A person can still be a trespasser even if they are allowed to enter, but entered with an intention to steal or commit an offence. They can therefore still be charged with burglary. An interesting case that illustrates this point is the English case of R v Collins [1973] 1 QB 100 where the accused was appealing a conviction of burglary with intent to rape. He climbed a ladder and saw the victim was asleep and lying naked in her room. He climbed back down the ladder, took of all his clothing except for his socks, and climbed back up the ladder. The victim saw the accused in the moonlight but could not make out his features, and beckoned to him to come inside. She mistook him for her boyfriend. Intercourse ensued and it was only after that she realised that the accused was not her boyfriend. The Queens Bench (an English court) quashed the conviction as prosecution must prove that the accused knew he was not welcome or was recklessly determined to enter the premises he was welcome or not.

An Australian High Court case that deals with the ‘limited’ authority granted by the owner and where that authority is exceeded (by removing items) is the case of Barker v R [1983] HCA 18.

If you have been charged with any of these crimes it is imperative that you contact a lawyer. Grigor Lawyers can can advise and represent you in these matters.

 

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