Property offences include offences such as stealing, unlawful use of a motor vehicle, fraud, robbery, extortion, housebreaking, arson and willful damage.These offences are all serious offences, and can all lead to a term of imprisonment. Most property offences in Queensland come under the Criminal Code.The Criminal Code consists of offences which are generally the most serious offences.
If you are charged with committing a property offence, it is important to know why you are being charged with the offence, and whether you have in fact committed the offence. It is also important to know the likely penalties that will be imposed, should you be convicted of the offence.
Whilst everyone has their own idea about what stealing is, the offence of stealing is quite complicated. However, in its simplest terms, stealing occurs when someone fraudulently takes a thing owned by another, or fraudulently converts to their own use a thing owned by another. The most common example of stealing is when a person takes something, with intent to permanently deprive the owner of the thing.
A person who takes a thing and deals with it in a manner whereby it cannot be returned to the owner in its original condition commits the offence of stealing,as does a person who takes money and spends it, even though that person may have intended to repay the money at some later stage. A person who finds a thing, and does not make a reasonable attempt to find its owner also commits the offence of stealing. This is sometimes referred to as stealing by finding. A reasonable attempt to find the owner might simply be handing the item in to police.
A person found guilty of stealing is liable to imprisonment for up to five years. Note however, that it is very rare for a person to be punished with the maximum penalty. A person who does not have any criminal history, or who has little criminal history, will be dealt with more leniently than a repeat or habitual offender.
Also, the penalty will depend upon the value of the thing stolen. For example, a person who steals a compact disc may receive a fine, whereas a person who steals a diamond ring valued at half a million dollars may receive a period of imprisonment. Other penalties which may be imposed upon a person convicted of stealing are a good behaviour bond, community service, probation, or a suspended period of imprisonment.
Receiving Stolen Property
An offence closely related to the offence of stealing is receiving. Put simply, a person who receives a thing which has been obtained by means of a wrongful act (usually stealing), and knows that the thing was obtained by means of a wrongful act, commits an offence of receiving. The maximum penalty for this offence is also a term of imprisonment.
To succeed in convicting a person of this offence, the police need to prove that the person knew that the thing was stolen, or that the person had good reasons to suspect that the thing was stolen.
A person who brings things that have been stolen in another state into Queensland also commits an offence.
If a person steals a thing from a shop, police may, instead of charging that person with stealing, charge that person with shoplifting. This is a much less serious offence, and carries with it a maximum fine of $450.00.
The offence must be dealt with in the Magistrates Court. A person commits the offence if they take the thing away from a shop without paying for it, unless the taking away of the thing was not dishonest. Police can only charge someone with this offence if the value of the thing does not exceed $150.00. In practice, police will only use this offence if the person does not have an extensive criminal history, especially for dishonesty offences.
STEALING CARS AND UNLAWFUL USE OF A MOTOR VEHICLE
A person can be charged with stealing cars, just as they can be charged with stealing anything else. A person who is convicted of stealing a car is liable to a maximum penalty of fourteen (14) years imprisonment.
Police in Queensland, instead of charging a person with stealing a car,usually charge a person with unlawful use of a motor vehicle, or unlawful possession of a motor vehicle. A person who uses a motor vehicle without the owner's consent commits the offence of unlawful use of a motor vehicle.
A person who has a motor vehicle in their possession, with the intent to permanently or temporarily deprive the owner of that vehicle or the use and possession of it, commits the offence of unlawful possession of a motor vehicle.It is a defence to these offences to show that the person had the owner's consent to use or have possession of the motor vehicle.
The maximum penalty provided is a term of imprisonment. This maximum penalty increases if the person uses or intends to use the motor vehicle for the purposes of committing an offence, or where the person interferes, or intends to interfere, with a mechanism attached to the motor vehicle. Unlawful use or possession of a motor vehicle is a serious offence, and people are frequently imprisoned for committing the offence.
Taking or using a vehicle
This is a similar offence to unlawful use or unlawful possession of a motor vehicle and is contained in the Vagrants, Gaming and Other Offences Act. This offence is committed if a person takes or uses a motor vehicle without the consent of the owner, or the person in lawful possession.
Police may charge a person with this offence, instead of unlawful possession or unlawful use of a motor vehicle. In this case, the matter is less serious, as the penalty provided by that Act is a fine not exceeding $500.00, or a term of imprisonment not exceeding twelve (12) months.
OFFENCES OF FRAUD
The offence of fraud can be committed in a number of ways. It is most commonly committed in the following circumstances:
When a person dishonestly applies property of another to the person's own use. For example, a person may use another person's cheque or credit card in order to purchase items, or obtain services.
When a person dishonestly obtains property from another person. For example,a person may pawn items that they do not own at a pawnbroker's shop, and receive money for the items. In this case, the fraud is committed when the person makes a representation to the pawnbroker that he or she is lawfully entitled, as the true owner of the item, to dispose of that item.
When a person dishonestly gains a benefit or advantage from another person.For example, where a person stays in a hotel, and leaves without paying for the accommodation.
The offence is made more serious, and the person committing the offence is liable to a greater penalty, if:
the person defrauds a corporation of which he or she is an officer;
the person defrauds his or her employer; or
if the value of the property obtained by the fraud is greater than $5,000.00.
Whether a person is guilty of an offence of fraud depends on whether the person's actions were dishonest. The police must prove that a reasonable person would have realised that the act was dishonest, and that the person who is alleged to have committed the offence realised that what they were doing was dishonest.
Passing Valueless Cheques
Passing a valueless cheque in order to obtain property or a benefit is also an offence. This offence is committed when a person draws a cheque which that person knows will 'bounce'. In other words, there will be insufficient funds in the drawer's account at the paying bank, and so the cheque will be returned unpaid to the person who presented it in the first place. A person who draws a cheque with an honest belief that it will be honoured does not commit an offence.
There are also specific offences in the Queensland Criminal Code which relate to computer hacking. A person who uses a restricted computer without the consent of the owner commits an offence. If the person does so with the intention of causing damage or gaining a benefit, the offence is more serious.
The Vagrants Gaming and Other Offences Act contains an offence which is similar to fraud. A person who imposes or attempts to impose upon another person by any false or fraudulent representation, with a view to obtaining any money,benefit or advantage, commits an offence which is referred to as imposition.
The offence is, compared to other offences, not overly serious, in that a person convicted of imposition is liable to a penalty not exceeding $100.00 or to a maximum period of imprisonment of six (6) months.
Of all property offences, the most serious is that of robbery. Essentially,the offence of robbery is committed if a person steals anything and, at, or immediately before or after stealing the thing, uses or threatens to use violence in order to obtain the thing stolen, or to stop anyone's resisting the theft.
A person convicted of the offence of robbery is liable to be imprisoned for fourteen (14) years. However, if the person is or pretends to be armed with a dangerous or offensive weapon (such as a gun, knife, or syringe), is in company with other people, or uses personal violence, then the person is liable to be imprisoned for life.
Most people, when they think of robbery, think of extremely violent situations such as bank hold-ups. Other examples of robbery offences are:
a person who confronts another person on the street, and threatens to stab that person with a blood-filled syringe if they do not hand over money; or
a person who pretends to have a knife, and threatens a person that they will use it if they do not hand over items of personal property (in this example, the fact that the person does not actually have a knife is, in law, irrelevant);
a person who grabs a lady's handbag, and then assaults that lady when she attempts to stop the person from stealing it.
The person does not have to actually have a weapon, or intend to use violence. Threatening violence is enough. Also, the value of the property stolen is irrelevant. A person can be convicted of robbery for threatening to use violence to steal $1.00.
The offence of robbery can only be dealt with in the District Court. If a person charged with robbery wishes to dispute the charge, then they must proceed to a trial before a judge and a jury of twelve people. Before the matter gets to the District Court, it goes to a committal hearing. This is a preliminary hearing before a magistrate where the magistrate must decide whether there is,on the face of it, a case against the person charged.
There are other offences similar to the offence of robbery. One of those charges is assault with intent to steal. Any person who assaults another person with intent to steal anything commits this offence. It is not as serious an offence as robbery, and a person convicted of this offence faces a lesser period of imprisonment, namely a maximum of three (3) years.
ARSON AND EXTORTION
A person who sets fire to a building, a vessel, a stack of produce, a mine,an aircraft or a motor vehicle commits the offence of arson. The maximum penalty for arson is imprisonment for life. A person who attempts to set fire to any of those things is liable to imprisonment for fourteen years.
The offence of arson can be dealt with in the Magistrates Court in less serious circumstances. Otherwise, it must be dealt with in the District Court.
The police must show that the person had an intention to set fire to the thing, or that the person deliberately did an act, and a likely consequence of that act was that the thing would be set on fire. In a District Court trial, the jury would have to decide, after taking into account all of the circumstances,whether the person wilfully set fire to the thing.
However, if a person wilfully sets fire to a building, for example, and people inside the building are killed or injured, then the person will probably be charged with other offences, such as murder, manslaughter, and causing grievous bodily harm.
The offence of extortion is committed if a person, with intent to extort or gain any property, benefit or the performance of services from any person,accuses or threatens to accuse that second person of committing an offence. The offence of extortion is also committed if a person, with intent to extort or gain any property, benefit or the performance of services from a second person,threatens that second person that they will be accused by another person of committing an offence.
The accusation or the threat to accuse can be in writing or can be verbal.The maximum penalty for extortion is three (3) years imprisonment, unless aggravated circumstances exist. If aggravated circumstances exist then the maximum penalty is fourteen (14) years imprisonment
BREAKING AND ENTERING
A person who breaks and enters a house, business premises, or other building commits a serious offence, which potentially carries with it high penalties. The seriousness of the offence ranges, depending on:
the type of premises broken into;
the time of day the premises were broken into;
whether violence is used;
whether the person is in company with other people; and
whether the person commits an offence whilst in the premises, such as stealing or damaging property.
Whether a person has broken and entered premises is sometimes a complicated question. Obviously, smashing a window to gain entry, jemmying open a door, or climbing into premises through the roof all constitute breaking. Courts have said that entering premises by a window that has been left open is not breaking.
Like most offences contained in the Criminal Code, breaking and entering, in many circumstances, can be dealt with in the Magistrates Court, or the District Court. It is up to the person charged to elect where the charges will be dealt with. However, if the charges are particularly serious, then a magistrate can refuse to deal with the charges and transfer them to the District Court.
The offence of wilful damage is committed when a person wilfully destroys or damages any property. The maximum penalty that can be imposed is a period of imprisonment. The Criminal Code states that certain cases of wilful damage are more serious. These cases include the damage of wills, aircrafts, and educational institutions.
Special provisions also exist for wilful damage which constitutes graffiti.In particular, the offender is liable for a greater penalty if the graffiti consists of obscene or offensive representations. The offender may be sentenced to perform unpaid community service, which can include removing graffiti from property. The offender can also be sentenced to pay compensation to cover the removal of graffiti from property which they have damaged.
Wilful damage is a charge that can be dealt with in either the Magistrates Court or District Court. If an offender intends to plead guilty, and the value of the damage is relatively small, it is generally better to have the matter dealt with in the Magistrates Court. This will ensure that the matter is dealt with promptly, and that credit is given for an early guilty plea. It is usually beneficial to seek legal advice as to the preferable court in which to have your matter heard, and the likely penalty you will receive.
This Information Outline is available courtesy of AussieLegal's online legal information and law firm referral service.
If you want further information, we recommend contacting the law firm of Ryan& Bosscher Lawyers who specialize in this area of law. They are located at 3rd floor, Bank of NSW Chambers, 33 Queen Street, Brisbane 4000,or call them on (07) 3229 3166.
Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become the premier Criminal Defence firm in Queensland, committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.