Week 6 Offences against property - stealing and robbery (Robbery The…
Week 6 Offences against property - stealing and robbery
stealing occurs when a person fraudulently takes or converts anything capable of being stolen. The definition of stealing is contained in s 391 of the Criminal Code (Queensland), and the fraudulent intent required for the offence is contained s 391(2).
Section 391(1)(2)(a-f) provides that a person who takes or converts anything capable of being stolen is deemed to do so fraudulently if the person does so with any of the six listed intents.
The punishment for stealing is contained in section 398 of the Code.
Ownership of Property
definition of property is extended by the definition contained in s 1 to include all things legal or equitable, including things in action and other intangible property.
In order to be capable of being stolen, the property must belong to a person
ownership is defined in s 391(7) which states that the owner includes the owner, any part owner or any person having possession or control of, or a special property in, the thing in question.
Therefore, stealing is an offence against possession as opposed to ownership, extending to someone who is not the owner of the property.
‘control’ is interpreted as its ordinary meaning to include the fact of controlling, or of checking and directing action, domination, command, sway:
R v Walk  Qd R 380 at 383 per Douglas J.
Stealing by Taking and Stealing by Converting
Section 391 provides that the taking of or conversion may be fraudulent although it is affected without secrecy or an attempt at concealment, s 391 (3), and also in the case of conversion, it is immaterial whether the thing converted is taken for the purpose of conversion or whether it is at the time of the conversion in the possession of the person who converts it: s 391(4).
Under s 391(6) the act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise deals with it by some physical act
This can include goods that are moved internally, although not taken out of the possession of the owner of them, provided that there is a fraudulent intent in relation to the thing:
R v Angus  QCA 29 at  per Pincus JA
Wallis v Lane  VR 293
the defendant was charged with stealing a number of bicycle accessories. The charge was initially dismissed at first instance because the property had been moved within the delivery truck but had not been removed from the owner’s possession. On appeal it was held that there is sufficient asportation (movement of the goods) if there is a removal of the property from the spot where it was originally placed with an intent to steal.
is a common law concept and is not defined in the Code. Therefore, the common law definition is adopted: R v Hally  Qd R 214 at 228 per Gibbs J. In Caxton Publishing Co v Sutherland Publishing Co  AC 178 the court held:
Dealing with goods in a manner inconsistent with the rights of the true owner amounts to conversion provided that it is also an intention on the part of the defendant in so doing to deny the owner’s right or to assert a right which is inconsistent with the owner’s right.
Pursuant to s 391(4) in regards to conversion, it is immaterial whether the property converted is taken for the purpose of conversion or whether it is at the time of the conversion in the possession, control or management of the person who controls it.
Therefore, to constitute stealing, one of the fraudulent intents in s 391 (2) must be present at the time of conversion.
Conversion may occur in relation to goods which were rightfully in the possession of the person who converts them:
Illich v The Queen (1987) 162 CLR 110 at 126-17.
Capable of Being Stolen
To steal a thing, it must be capable of being stolen: s 390.
Under this provision, a thing is capable of being stolen if it is the property of any person and it is moveable. It is also capable of being stolen even if it is made moveable in order to steal it
High Court in Croton v R (1967) 117 CLR 326
per Barwick J at 330 observed it consists of: “property that is capable of physical possession and removal”.
most common offence is s 391(2)(a) – an intent to permanently deprive the owner of the thing or property in it or any part of it
The offence of stealing with the circumstance of aggravation - violence accompanied the stealing - is robbery, and is an offence under section 409, punishment of robbery is contained in section 411.
The violence is used or threatened to be used, immediately before or after the stealing and must be used in order to obtain the thing stolen, or to prevent or overcome resistance to its being stolen.
The elements of stealing are relevant to establish robbery.
A small amount of violence will suffice for robbery - however the force must be something more than that required to merely take an object from an unconscious or otherwise unresisting person - R v Jerome  Qld R 595
Aggravated robbery involves more serious violence or circumstances of aggravation. Pursuant to section 411(2):
• The offender is armed or pretends to be armed with a dangerous or offensive weapon or instrument.
• The offender is in company with one or more other person or persons.
• At, immediately before or after the robbery the offender wounds or uses any other personal violence to any person.
The violence associated with robbery may be of a defensive nature (example used to escape) and need not be a positive force that has been used to overpower the victim:
Hood v The Queen (2000) 111 A Crim R 517 at 522.