Week 7 - Offences against property - Burglary, Receiving, Fraud, Arson, Wilful Damage and Drug Offences
Burglary
The offence of burglary is governed by s 419(1) [in addition to ss 421, 425-427] of the Criminal Code (Qld).
Any person who enters or is in the dwelling of another with intent to commit an indictable offence in the dwelling commits a crime.
Entering (a dwelling) – Physical Element
‘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.
Mental Element
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.
Receiving
The offence of receiving arises under s 433. A person receives anything that has been obtained by means of any act constituting an indictable offence.
To establish receiving the prosecution must establish the defendant had the thing in possession or aided in the concealing or disposing of it: s 433(2).
Proof of actual or constructive possession is necessary to establish a charge of receiving.
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:
Fraud
s408C
The elements of fraud are;
that a person must dishonestly apply to his or her use, or
to the use of any other person, either property belonging to another, or property belonging to that person which is in the person’s possession, either solely or jointly with another person, subject to a trust direction or condition or account of another person: s 408C(1)(a).
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.
Property in Fraud
Dishonesty in Fraud
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‘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.
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.
Arson
The offence of arson is governed by s 461.
The offence of arson is constituted when any person who wilfully and unlawfully sets fire to any of the listed things contained in s 461(1)(a)-(d) including such things as a building, structure, motor vehicle, train, aircraft, vessel, produce, fuel or mine.
Wilful Damage
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The offence of wilful damage is governed by s 469.
Wilful damage is offence where any person who wilfully
and unlawfully destroys or damages any property is guilty of an offence.
A defendant will act ‘wilfully’ if he/she intended the damage or if he/she was aware that the damage was likely but recklessly disregarded the risk and proceeded as he/she did: R v Webb; Ex parte Attorney-General [1990] 2 Qd R 275 and R v Lockwood; Ex parte A-G [1981] Qd R 209.
Drug Offences
Queensland Drug Offences
Commonwealth Drug Offences
Drugs Misuse Act 1986 (Qld) governs offences relating to dangerous drugs in Queensland
Commonwealth Criminal Code (Cth) mostly deals with the import and export of drugs
Qld Penalties
Drugs Misuse Regulation 1987 (Qld) regulates the penalty for drug offences. The penalty is dependent upon which class of drug and the quantity of the drug.
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).
Trafficking
Trafficking is considered a more serious offence than supplying. Trafficking is not defined in the legislation.
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
Supply
s4 of the Drugs Misuse Act 1986 (Qld) to mean: ‘give, distribute, sell, administer, transport or supply’. Supply includes to offer to do any of those acts or doing or offering to do anything that is in preparation of any of those acts.
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.
Possession
Lai v R [1990] WAR 151
Possession requires control over the direction of the use of the drug
Beckwith v The Queen (1976) 135 CLR 569 per Gibbs J at 575
Possession is a possessive consequence of a prior act, namely the act of acquisition
Possession can take two forms: actual physical custody; and constructive custody
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.
Section 116 of the Drugs Misuse Act 1986 (Qld) adopts the provisions of the Code (Qld) section 1 – the term possession includes ‘having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or for another person, and although another person has the actual possession or custody of the thing in question’.