Statutory Offences beyond Larceny
Continuing discussion of fraudulent misrepresentation and appropriation. Also offences of burglary, robbery, false pretences, demanding money by menaces, obtaining property by deception, and receiving stolen goods are examined. Often involve illegal acquisition, appropriation or conversion outside conventional limitations of larceny. Generally must be fraudulent. Some have an assault or a trespass.
Crimes Act (NSW)
• Mens rea at time of taking/handling covers larceny by trick (s. 117) where possession is gained. However, obtaining property by false pretences (s.179) involves gaining ownership.
• The subsequent mens rea relates to larceny by a bailee (s.125) referring to possession gained. The alternative charge is fraudulent misappropriation (s.178A) where ownership is gained.
• Wherever terminology overlaps there is usually an alternative charge e.g. “appropriate” - is generic – putting money in bank account
“convert” - is a subset of appropriate – converting for you own use (use money to buy beer)
• Alternative verdicts for larceny and specialist property offences - embezzlement (an alternative being larceny by trick), fraudulent misappropriation, obtaining by false pretences, or fraudulent appropriation.
Alternative verdicts:
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Larceny
(including larceny by a bailee: s125)
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S124
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Fraudulent misappropriation (s178A)
Obtaining by false pretences (s183)
Fraudulent appropriation
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Larceny
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Obtaining by false pretences
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Larceny
Fraudulent misappropriation (s178A)
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Fraudulent misappropriation (s178A)
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NO ALTERNATIVE VERDICT
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Fraudulent Misappropriation
• S.124 Crimes Act – Fraudulent Appropriation – fraudulently appropriated property to their own use but not originally taken property with fraudulent intent - different from larceny in two ways
1. no need for coincidence of act and mental state
2. involves appropriation
• s.173 CA - Directors etc fraudulently appropriating etc property - on this charge ‘fraudulently’ is equivalent to ‘dishonestly’ and not necessary for judge to define dishonestly (Glenister (1980)). Jury should apply current standards of ordinary decent people (Feely)
• Unauthorised use of property is not sufficient for it to be fraudulent. Must be degree of moral abuse.
• S.178A CA is general provision covering all types of fraudulent misappropriation. Creates specific offences within its terms.
- Different to theft by a bailee because the accused may obtain ownership and possession.
- Is an alternative to false pretences (s.179)
- Must be proof of fiduciary element in relationship of accused to property concerned.
- Receipt of the property must be for another or another’s purpose
- May be seen to overlap with larceny by trick & false pretences.
Obtaining property by Deception (by false pretence)
• Offence of obtaining money by deception (s178BA, s.178BB, s.178BC, s.179) relies on accused engaging in a deception dishonestly to money, valuable property or ‘a financial advantage of any kind’
• Crimes Act defines deception as deliberately or recklessly committed by words or conduct, including a deception as to present intention, and as to an act or an omission producing an unauthorised response.
• Concept of obtaining and the object being a thing of value which SET IT APART FROM LARCENY
• Property must be handed over as consequence of the deception (R v Ho (1980)) and person deceived doesn’t have to be the person from whom the property is obtained.
• POSSESSION & OWNERSHIP must pass otherwise ‘larceny by trick’ may be alternate charge.
• Relationship b/w larceny and misrep or false pretence in Croton
Peters v R (1998) (High Ct.)
If act of accused held to be dishonest by ordinary notions, sufficient for judge to instruct the jury that the accused’s actions are to be considered according to the standards of ordinary people.
s178BA(2): obtaining by deception where act / omission done with intention of causing computer or machine designed to operate by means of payment or ID to make response it’s not authorised to make
• This has no effect on offence of obtaining by false pretences: s179.
• Designed for situations of obtaining financial advantage by deception. Fin. Adv. Taken in its plain meaning - now covers unauthorised response from ATM.
S178BB: extends these offences to obtaining money (valuable things) or financial adv. Through making or publishing misleading statements, which accused person knows to be misleading.