Please enable JavaScript.

Coggle requires JavaScript to display documents.

Week 7 - Offences against property - Burglary, Receiving, Fraud, Arson,…

- - - - ‘Enter’ is defined in s 418(2): a person is said to enter a dwelling or premises as soon as any part of the person’s body or any part of any instrument used by the person is within the dwelling or premises. ‘
      - ‘Break’ is one of the aggravating factors increasing the maximum penalty to life imprisonment.
        Break is defined in s 418(1) as:
        a person who breaks any part, whether external or internal, of a dwelling or any premises, or opens, by unlocking, pulling, pushing, lifting, or any other means whatever, any door, window, shutter, cellar, flap, or anything intended to close or cover an opening in a dwelling or any premises, or an opening giving passage from one part of the dwelling or any premises to another is said to break the dwelling or premises.
    - - The prosecution must establish the defendant held the requisite mental intent to commit an indictable offence.
        For example, stealing money from a desk inside the premises, or committing grievous bodily harm against the occupant of the premises.
- - - - R v Patterson [1906] QWN 32
        The prosecution must establish the defendant had the relevant state of mind at the time when he/she received the thing
        
        R v Cavendish [1961] 2 All ER 856.
        Therefore, it is not sufficient that the goods were found on the defendant’s premises. The prosecution has the onus to establish the defendant was aware of their presence and exercised some form of control over the property:
- - - - Property in Fraud
        
        ‘Property’ is defined in s 1 and s 408C(3).
        
        A person’s act or omission in relation to property may be dishonest even though he/she is willing to pay for the property, or he/she intends to afterwards restore the property, or make restitution, or the owner or another person consents to doing any act or making an omission, or a mistake is made by another person: 408C(3)(b).
        
        Pursuant to s 408C(3)(d) ‘persons to whom property belongs’ includes the owner,
        any joint or part owner or owner in common, any person having a legal or equitable interest in,
        or claim to the property and any person who immediately before the offender’s application of the property, had control of it.
      - Dishonesty in Fraud
        
        Peters v The Queen (1998) 192 CLR 49 and held:
        The case in which it is necessary to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused held that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest. Necessarily, the test to be applied in deciding whether the act done is properly characterised as dishonest will differ depending on whether the question is whether it was dishonest according to ordinary notions or dishonest in some special sense. If the question is whether the act was dishonest according to ordinary notions, it is sufficient that the jury be instructed that it is to be decided by the standards of ordinary, decent people.
- - - - Schedule 1 and schedule 2 divide drugs into two distinct categories. For example: amphetamine, cocaine, heroine and methylamphetamine are a schedule 1 drug; Buprenorphine, cannabis sativa, chlordiazepoxide and gamma hydroxybutyric acid (GHB) are a schedule 2 drug.
      - Schedule 3 and 4 specify certain quantities of those drugs from schedule 1 and 2 which determine the maximum penalty and further whether the matter can be dealt with summarily (in the Magistrates Court) or in indictment (in the District Court or the Supreme Court).
  - - - Quaile v R [1988] 2 Qd R 103 per Ambrose J at 116 and per Macrossan J at 113 the court held the term encompasses the various acts identified within the definition of supply when there is a commercial element, which involves purchase for further sale, a profit motive element. You will often hear prosecutors and defence practitioners refer to the words ‘commercial supply’. It is under those circumstances trafficking is alleged.
      - R v Dent [2002] QCA 247 per J Williams at [6].
        Trafficking encompasses the carrying on of a business with the act of continuity of operations, with communications with prospective buyers, setting up lines of supply, negotiating, arranging for collection and delivery, such indicia of a carrying on a business for commercial gain
  - - - Aggravated supply is contained in section 6(2)(a)-(e) and arises where an adult offender supplies drugs to:
        a minor; an intellectually impaired person; a person within an educational institution; a person within a prison; or a person who is unaware the drug is being supplied to that person.
  - - - physical custody arises where the person has actual control, for example the drug is in their pocket
      - Constructive custody arises where the drug is physically separate from the person – however, the person is said to have control of the drug. An example is where a defendant has hidden a drug so they can take it into physical custody at a later time: Williams v Douglas (1949) 78 CLR 521 per their Honours of the High Court at 526-527.