PROPERTY OFFENCES

Criminal Damage s 444

1. Any person who wilfully and unlawfully destroys or damages any property is guilty of a crime and liable –
a. If the property is destroyed or damaged by fire – life imprisonment
b. If the property is not damaged or destroyed by fire – 10 years and in circumstances of racial
aggravation 14 years

Alternative offences: s 445 Damaging Property

Answer plan
Under s 444 of the Code, criminal damage occurs when a person wilfully and unlawfully destroys any property. The
elements are discussed below.
ELEMENTS
 Any Property – s 1
 Destroying or Damaging – s 1
 Wilfully – s 443
 Unlawfully – s 441 and s 442

Element 1: Any Property: s 1

 Section 1 Definition: includes ‘real and personal property and everything, animate or inanimate, capable of
being the subject of ownership’
Element 2: Destroying or Damaging: s 1
 Section 1 Definition:
o Destroy (Animate): in relation to animate property, means kill and includes injure
o Damage (Inanimate): in relation to record means to deal with the record so that –
 Information recorded or stored upon the record is obliterated rendered illegible or
irrecoverable; or
 It cannot convey a meaning in a visible or recoverable form;
o Damage (Animate): in relation to animate property, includes injure
 The definition of damage is given as ‘rendered imperfect or inoperative’ and even though it can be
remedied: R v Zishcke
 It is a temporary or permanent harm and does not matter even if there is a cost of fixing: R v Previsic
 Damage/destruction of property can be done by a positive act or an omission. – look to duty.

R v Zishcke: definition of Damage: Held that a thing is damaged if it has been rendered imperfect or inoperative.
The damage also need not be permanent even if it can be remedied (rendered damage for a small period of time).
If money has to be spent to remedy the thing, the thing is proven to be damaged.

R v Previsic: Damage includes permanent or temporary harm and it is not the law that there can be no damage
unless there is a cost to fixing it.

R v Miller: Damage/Destruction of property can be done by a positive act or omission (look at common law to look
at duty).
 When you create a dangerous situation, you have a duty; take steps in power and reasonable to prevent
a dangerous situation from happening. Relevant to s 443?

Element 3: Wilfully: s 443

 the intention to destroy or the knowledge or belief of the likelihood of destruction (in WA there need not
be actual knowledge compared to QLD)
 s 443 gives wilfully as the intention to destroy/damage or the knowledge or belief of the likelihood of
destruction/damage.
o Hind & Harwood: ‘Likely’ means substantial and real and not remote chance.
o R v Hayes: ‘Wilfully’ can mean there can be actual intention or knowledge or one knew that it was
likely that damage would occur.

Element 4: Unlawfully: s 441 (see code)

 S 441 of the Code states that it is unlawful if the injury is property to another person and the injury occurred
without consent and there are no authorisations, justifications or excuses.
Is there a Breach of Duty? S 444A
 It is also unlawful if there is a duty under s 444A where a dangerous situation is created and steps should be
taken in power and reasonableness so as to prevent a dangerous situation from happening

Is there an intent to defraud? S 442

  When an act which causes injury to property and which would be otherwise lawful is done with intent to
defraud any person it is unlawful.
 When an act which causes injury to property is done with intent to defraud any person, it is immaterial that
the property in question is the property of the offender himself. (i.e. Fraudulent insurance claim)

S 441 Code
(1) An act which causes injury to another and which is done without his consent is unlawful unless it is
authorized or justified or excused by law.
 Unlawful if the injury is property to another person; and
 The injury occurred without consent; and
 No authorisation or justification or excused by law
(2) It is immaterial that the person who does the injury is in possession of the property injured or has a
partial interest in it
(3) A person is not criminally responsible for an act that causes an injury to property if –
(a) The person believes the act is necessary to defend or protect the person, another person or
property from injury that the person believes is imminent; and
(b) The act is a reasonable response by the person in the circumstances as the person believes
them to be; and
(c) There are reasonable grounds for those beliefs.
Conclusion As discussed above, since the elements have been satisfied –
 ________ is liable for life imprisonment as the property is destroyed/damaged by fire to imprisonment for
life: s 444(1)(a)
 ________ is liable to imprisonment of 10 years is the property is not destroyed by fire but if the offence is
committed in substances of racial aggravation, to imprisonment for 14 years: s 444(1)(b)
STEALING: s 371(1) & s 378
1. Section 378 - OFFENCE PROVISION: Any person who steals something capable of being stolen is guilty of a
crime.
2. Section 371(1) – ELEMENTS: Any person who fraudulently takes anything capable of being stolen, or
fraudulently converts to his own or to the use of another is said to steal that thing of property.

∆ There are two types of stealing

1. ‘Taking’ Stealing
a. taking
b. anything capable of being stolen
c. fraudulently
2. ‘Conversion’ Stealing
a. Conversion
b. Property
c. Fraudulently
Answer Plan
Under s 371, a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own
use or to the use of any other persons property, is said to steal that thing or that property.
ELEMENTS
Element 1: Property which is capable of being stolen
 Under s 370, a property can be an inanimate object or an object belonging to a person.
 Animate objects include;
 Tamed pigeons can be capable of being stolen it’s on its owner’s property or in a Pidgeon
hole/cage.
 Pets can be capable of being stolen if it is kept in confinement
 Wild animals in its natural habitat is not capable of being stolen unless it is kept in
confinement
 Animals dead or dead in the wild are capable of being stolen
 Waste matter is capable of being stolen
 Mistakes preventing transfers:
o Person giving the property is mistaken about the identity of the person receiving
the property
o Person giving the property is mistaken about the identity of the thing being
transferred.
o Person giving the property is mistaken about the quantity of the property being
transferred.
Exception of Money: R v Ilich
 Can you be liable for stealing money?
o At the time when the money changes hands and the person is not aware of the mistake and
only subsequently finds out, the person is not liable for stealing. However, if the person is
aware of the mistake at point of changing hands, then the person is liable for stealing

Element 2: Taking or Converting

Is this a ‘Taking Stealing’ case?

o Taking is the movement with a fraudulent intent and even a slight movement will constitute
taking: Wallis v Lane
o Taking = Movement– Moving an item from one spot to another in a truck with an intent of
stealing (fraudulent intent), a slight movement of a property can constitute taking: Wallis v
Lane
o Anything taken which contains money means they have stolen the money: Garlett
o Offence may continue to be committed after the first movement. Intention can be formed after
entering the premises: Johnston

Is this a ‘Conversion Stealing’ case?

o Conversion is the dealing of the property that is inconsistent with the owner’s rights: R v Ilich
o Hiring and failing to return video games amounted to conversion to their own personal use. R v
Angus
o whether keeping video (failed to return) amounted to conversion? Hiring of games, merely
keeping property beyond their use date does not amount to conversion. But at a point where
your keep it consistently, or when there is a demand for return, the court is likely to say there
may be conversion for own use: R v Angus –
o The basis of a stealing charge in cases where there was no question of criminal
liability with respect to the original ‘taking’; s 371(4) and Angus
Element 3: Fraudulent intent
 Intentions listed in s 371(2) a-e (see Code provision below)
 Intention to permanently deprive the owner or the property (a).
 Or taking it in such a manner that it cannot be returned in the same condition (damaged) – (e)

EXEPTION:
 Stealing a motor vehicle with an intention to return it (without the fraudulent intent): s 371A
 If a vehicle is used, driven or controlled without the consent o the owner, this amounts to stealing even
if one intends to return it to the owner.
CCWA s 371(2):
(2) person who takes anything capable of being stolen or converts any property is seemed to do so fraudulently if
he does so with any of the following intents, that is to say
(a) An intent to permanently deprive the owner of the thing or property of it or any part of it;
(b) An intent to permanently deprive any person who has any special property in the thing or
property of such special property:
 You can steal your own property if you take it from people who have special property in them eg car
repairs R v Smalley this special property dos not just arise from possession: O’Brien
(c) An intent to use the thing or property as a pledge or security;
 Retaining as pledge is not stealing: Bowman
(d) An intent to part with it on a condition s to its return which the person taking or converting it
may be unable to perform;
(e) An intent to deal with it in such a manner that it cannot be returned in the condition in which
it was at the time of the taking or conversion;
(f) In the case of money, an intent to use it at the will of the person who takes or converts it
although he may intend to afterwards repay the amount to the owner.
 R v Ilich: mistaken overpayments not stealing as when you realise the property is
yours.
Taking or converting the things must Actually Move
 s 371(6): Stealing is not complete until the person actually moves it or otherwise physically handles it.
Must involve movement of the property or some kind of physical act.
 Property
o S 1 defined: as real and personal property and animate and inanimate things which are capable
of being owned.
o S 371(7): Real and personal money/debts/bank credits, property converted or exchanged.
 Lost property
 S 371(5): if one takes or converts property that is lost, the person is not liable for stealing if at the time
of finding the lost property, the person does not know who the owner is and believe on reasonable
doubt that the owner cannot be found.
o The more unusual the property, the higher chance of the owner being found. i.e.
owner reporting a 1 million sum of money lost.
Abandoned Property
 If the property has been abandoned by its owner it is not owned and therefor is not capable of
being stolen: Dolby v Santa
Conclusion
Under s 378, any person who stole anything capable of being stolen is liable to imprisonment of 7 years if no other
punishment is provided. However if the thing stolen is a motor vehicle, and drives in a manner that constitutes an
offence of the Road Traffic act, the person is liable to 8 years imprisonment
S 401: BURGULARY
S 401(1) & (2) Burglary (two types intent or offence completed)
1. S 401(1): A person who enters or is in the place of another person without consent with the intent to
commit an offence in that place;
2. S 401(2): A person who commits an offence in the place of another person, when in that place without
that other person’s consent;

Is guilty of a crime and is liable – up to 20 years. See 401(1) provisions for charges

a) Committed in circumstances of aggravation? (20 years) – s 401(1)(a)

Immediately, before, during, or after the commission of the offence the offender is – s 400(1)(a)
i. Is or pretends to be armed with a dangerous or offensive weapon
ii. Is or pretends to be in Possession of explosive substance
iii. Is in company with another person or other persons
iv. Does bodily harm
v. Threatens to kill
vi. Detains the person: meaning s 332(1)
vii. Knows there is a person in the place
b) If the offence is a home burglary (human habitation) but not committed in circumstances of
aggravation (18 years) – s 401(1)(b)
c) In any other case 14 years – s 401(1)(c)
 Answer Plan
Under s 401, the offence of burglary has been committed is a person enter or is in the place of another person
without consent; with an intent to OR commits an offence in that place. The elements are given in ss 400- 1 of the
code and will be discussed below.
ELEMENTS
Element 1: Enter or is in
 S 400(2) provides that one has enters a place as soon as any part of the body or any part of anything in
possession/control is in the place (e.g. tools)
Element 2: The place of another
o S 1 defines places: ‘Place’ means a; Building, Structure, Tent, Conveyance (can be vehicle; vessel
or aircraft)
Element 3: Without Consent
o Consent can be expressed or Implied and the courts will look at surrounding circumstances:
Barker v R
o Consent can be withdrawn
o Consent can be for limited purposes
o A person who enters with a purpose outside a license or agreement is doing so without consent R
v Barker
o A came into the V house, who consented and committed an offence, breach of a restraining order
R v King
Element 4: Either with the intent ‘s 401(1)’ or DOES commit an offence in that place ‘s 401(2)’
 Commit an assault or stealing
 Can be charged for the grounding offences; both burglary and stealing can be charged separately, however
sentences do not double
 It is sufficient if A had conditional intent to steal anything Attorney Generals References No 1 and 2

Aggravated Burglary – Circumstances of aggravation

 See Above or s 400(1)
Repeat Offender? S 401B
 Current offence (burglary) is a repeat offender if the person has at least 3 relevant convictions
 Will be a repeat offender if –
o The person’s conviction, is to be counted; and
o Each of the persons relevant convictions is to be counted, regardless of whether the home
burglary to which it relates was committed before or after the date of any previous relevant
conviction; and
o Each of the person’s relevant convictions is to be counted regardless of whether it has been
counted on the occasion of sentencing for a precious home burglary to determine whether the
person was, on that occasion, a repeat offender

Conclusion
Since the elements as discussed above have been satisfied, _______ is likely to be guilty of burglary.
 HOWEVER: the next issue would be whether the burglary has been committed in circumstances of
aggravation or the place is ordinarily used for human habitation
With intent to commit offence Committed an offence
NO The penalty that ____ is likely to face is a The penalty that ____ is likely to face is a
maximum of 14 years imprisonment: s 401(1)(c) maximum of 14 years imprisonment: s 401(2)(c)
Yes/Aggr The penalty that ____ is likely to face is a The penalty that ____ is likely to face is a
maximum of 14 years imprisonment: s 401(1)(a) maximum of 14 years imprisonment: s 401(2)(a)
HOME The penalty that ____ is likely to face is a The penalty that ____ is likely to face is a
maximum of 14 years imprisonment: s 401(1)(b) maximum of 14 years imprisonment: s 401(1)(b)
S 414: Receiving Stolen Property
Under s 414 any person who receives stolen property is guilty of a crim and is liable to a maximum imprisonment of
14 years. The elements are discussed below.
Elements
1. The property is being obtained by an act constituting an indictable offence
 By stealing; robbery; or burglary
2. The property was received by the accused
3. The person receiving the property knew it was obtained by means of an indictable offence
 Pereira v DPP: actual knowledge that the person receiving property knew it was obtained by an
indictable offence –
a) An ‘Objective test’ if on objective consideration that a reasonable person would
know that the property was stolen and in suspicious circumstances.
 b) DOCTRINE OF RECENT POSSESSION: to establish knowledge. If found in possession
of property that was recently stolen, unless there is reasonable explanation, entitles
to infer that a matter of fact that the person had actual knowledge the property is a
stolen good
Conclusion
The accused is likely liable under s 414 for < apply conclusion>