Offences against property

23 May 2017 - 08:59 | Version 15 |

Contributed by SheetalBalakrishnan and current to 1 May 2017

Most offences against property in the Northern Territory are set out in Part VII of the Criminal Code Act. However, the Summary Offences Act also prescribes certain regulatory offences against property, which are of a more minor and obscure nature.

Criminal damage

It is an offence to damage property belonging to someone else [CCA s.241(1)]. The maximum penalty for an offence of criminal damage is 14 years imprisonment. Damage includes destroying or defacing the property [CCA s.238(b)]. This offence includes acts of vandalism and damage to a car or building. Where the property damaged belongs to the person who caused the damage and another person, an offence may still be committed [CCA s.239(3)].

An offence is committed if the person intentionally or recklessly causes the damage. A person intends to cause damage if the person means to carry out the act [CCA s.43AI(1)]. Recklessness is where the person is aware of a certain risk and without justification takes the risk [CCA s.43AK(1)].

Threatening someone to damage property is also an offence with a maximum penalty of seven years imprisonment [CCA s.241(2)]. The threat must be to cause death or serious harm to someone [CCA s.241(2)(b)(ii)].

Defences

In addition to other defences available under the law (for example, self-defence, sudden and extraordinary emergency or duress), a person may not be criminally responsible for causing damage to property belonging to someone else if:
  • a person who is entitled, in relation to the property, has consented to the property damage [CCA s.248]; or
  • at the time the damage is caused, the person is mistaken about a right or interest in the property [CCA s.249].

Offensive weapons

It an offence to possess an item that is intended to be used to damage property belonging to someone else [CCA s.241(5)].

When an object is used to damage property, this gives rise to a separate offence of using an offensive weapon [Weapons Control Act (WCA) s.8]. An offensive weapon includes any article made, adapted, or used intentionally to cause damage to property [WCA s.3]. This could include, for example, a rock or a piece of wood spontaneously used to damage property.

Domestic Violence Orders

In the case of people in a domestic relationship [Domestic and Family Violence Act (DFVA) s.9], damage to property may also provide a basis for a person to obtain a Domestic Violence Order [DFVA s.18]. Domestic Violence Orders frequently include a condition restraining a person from damaging the property of the protected person. See Domestic and Family Violence for more information.

Arson

It is an offence to use fire or an explosive to damage a building or conveyance [CCA s.243(1)]. A building includes a part of a building, or anything that is designed for living in, while a conveyance includes an aircraft, boat, train, car or trailer [CCA s.243(5)]. The maximum penalty for arson is life imprisonment.

An attempt to commit arson attracts a maximum penalty of 14 years imprisonment [CCA s.243(2)].

Threatening someone to use fire or an explosive to damage a building or conveyance is also an offence with a maximum penalty of seven years imprisonment [CCA s.243(3)].

Unlawful use of motor vehicle

A person (including a passenger) who uses a boat, car, caravan or trailer without its owner's permission is guilty of an offence [CCA s.218(1)]. The offence typically covers joyriding scenarios where the offender does not intend to actually steal the vehicle. The offence applies equally to drivers and passengers. However, a possible defence to the charge could arise for a person who is under a reasonable, but mistaken belief that the vehicle was being used lawfully (i.e. with permission) [CCA s.43AW].

The offence attracts a maximum penalty of two years imprisonment, or seven years if aggravated by any of the following circumstances [CCA s.218(2)]:
  • a person is injured or endangered;
  • the value of the vehicle exceeds $20,000;
  • there is at least $1,000 worth of damage to the vehicle;
  • the vehicle is used to commit another offence; or
  • the vehicle's whereabouts are unknown to the owner for 48 hours or more.

Stealing

The NT definition of stealing [CCA s.209] is very wide. A person is guilty of stealing if they take and use somebody else's property as their own unlawfully, that is, 'without authorization, justification or excuse' [see Part II of the CCA].

A person can be found guilty of stealing in any of the following situations:
  • where they intended to keep the property permanently;
  • where they intended only to borrow the property for a short time during which they treated it as their own (for example, taking money to gamble on the races with the intention of later returning it; or taking an object to the hock-shop to get a loan (which in turn could also give rise to a separate charge of criminal deception [CCA s.227]);
  • where they initially came by the property innocently, but subsequently unlawfully assumed a right to keep it or deal with it as the owner (for example, where a person finds a wallet in the street and fails to return it to the owner or hand it in to the police as lost property; or where a person who realises that they have been mistakenly overpaid, but decides to keep the money); or
  • where a person takes property notwithstanding that they were willing to pay for the property at the time (for example, where a shoplifter is confronted at the supermarket check-out with concealed goods in their backpack, and then offers to pay for them).
The maximum punishment for stealing or theft is seven years imprisonment. Where the value of the goods stolen exceeds $100,000, or the property stolen is a testamentary instrument, the maximum penalty is 14 years [CCA s.210]. Stealing is considered to be more serious if it occurs within a relationship of trust, such as when an employee steals from their employer.

It will not be stealing if a person finds property and reasonably believes that the property has been lost and the owner cannot be found [CCA s.209(1)]. For example, it would be difficult to charge someone who finds a $20 note in the street, in contrast with the above scenario where a person finds a wallet in the street.

Criminal deception

A person who by deception obtains the property of another, or obtains a benefit (whether for themselves or for another) commits an offence [CCA s.227]. This offence includes insurance fraud or pawning stolen goods. The maximum penalty for this offence is seven years imprisonment, unless the property or benefit obtained has a value of $100,000 or more, in which case the maximum penalty is 14 years imprisonment.

Receiving criminally obtained property

A person who plays any part in receiving, possessing, concealing or disposing of property obtained by means of crime, knowing or believing it to have been so obtained, is liable to a maximum of seven years imprisonment, or 14 years imprisonment where the value of the property is more than $100,000 [CCA s.229]. The prosecution must prove the person's knowledge or belief. They may do so by reference to the situation. For example, a person who buys four new steel-rimmed tyres from a stranger at well below the normal retail price may be found guilty of an offence under this section if the prosecution can establish that he knew or believed that they were stolen.

It must be proven that the person had this knowledge or belief at the time the person received the property. It is not sufficient if the person only found out later [Patterson [1906] QWN 32].

A person does not have to be in possession of the property at the time of arrest, such that proof that the person had possession of the property at some time in the past will be sufficient [CCA s.229(5)].

Possession of stolen goods

Where the police find property within a person's custody, control, premises or disposal, which the police reasonably suspect as having being stolen or otherwise unlawfully obtained, that person may be found guilty of having stolen goods [Summary Offences Act (SOA) s.61]. This offence carries a maximum penalty of a $2,000 fine or imprisonment for 12 months. Unlike the offence of receiving under section 229 of the CCA, the prosecution does not have to prove that the offender knew that the goods were stolen in order to make out a charge under section 61 of the SOA. They merely have to establish that police suspicions that the goods were stolen were reasonably held. Another important difference between section 229 of the CCA and section 61 of the SOA is that a person can only be charged under section 61 where the person is actually in possession of the property at the time of arrest or apprehension. See Mununggurritj v Rue [2007] NTSC 2 (16 January 2007). The onus of proof is also reversed in section 61 of the SOA. To establish their innocence, a person charged under section 61 must provide the court with a satisfactory explanation as to how they came into possession of the suspected property see Mununggurritj v Rue [2007] NTSC 2 at [17] and also Eupene v Hales [2000] NTCA 9.

Robbery

Robbery occurs where a person uses or threatens violence immediately before, during, or after stealing in order to obtain the property, prevent or overcome resistance, or assist escape [CCA s.211]. The violence need not be directed at the victim of the robbery, such that violence used or threatened to any person will be sufficient. See R v Stanischewski [2001] NTSC 86 at [16] for a discussion about interpreting the elements of this offence.

A person committing robbery alone faces a maximum penalty of 14 years imprisonment. However, if the person is armed with a firearm or other weapon, is in company with any other person, or causes harm to any person, the maximum penalty is imprisonment for life.

Assault with intent to steal

If a person assaults another with intent to steal anything, the person commits a crime carrying a maximum penalty of seven years imprisonment [CCA s.212(1)]. This provision covers criminal activity commonly known as 'mugging' or 'rolling'. The circumstances in such a case may suggest two separate offences (i.e. assault and stealing), rather than the offence of robbery.

An offender who is armed with a firearm or other weapon, or is in company with any other person, or who causes the victim harm, is liable to imprisonment for 14 years [CCA s.212(2)]. If the offender discharges a firearm and injures anybody, the maximum penalty is imprisonment for life [CCA s.212(3)].

Trespass

Trespass on any building, structure, dwelling, yard, area or vehicle is a regulatory offence and carries a maximum penalty of 20 penalty units or six months imprisonment [Trespass Act s.5]. For example, a person commits a trespass by entering someone else's house without permission. A trespass can also be committed by entering a place where the person has previously been warned to stay away (for example, a shopping centre).

A person may defend a charge of trespass if they prove that it was the result of an honest and reasonable mistake of fact (for example, they had the wrong address), or that the trespass was necessary for reasons of protection or emergency [Trespass Act s.13].

Unlawful entry

Where a person enters a building unlawfully (that is, without authorisation, justification or excuse [see CCA Pt. II]), with intent to commit an offence or crime (for example, stealing, unlawful damage or assault), they are guilty of unlawful entry [CCA s.213]. The person must have an intention to commit an offence at the time the person unlawfully enters the building. If the intention is formed after the entry, then the person will not be guilty of an offence of unlawful entry. If a person is proved to have entered a building unlawfully, there is a presumption that they did so with intent to commit a simple offence or crime [CCA s.214(3)].

Penalties for this offence depend on the type of building, the criminal intent of the offender, whether it was night or day, and whether the offender was armed (see Table 1 below).

Although unlawful entry is commonly referred to as 'break and enter', a person can still be found guilty of the charge even if they haven't actually damaged or broken into the premises. For example, going into a house through an unlocked door with the intention of stealing something is still unlawful entry.

Offences committed with common criminal purpose

A person can be found guilty of an unlawful entry even if they never actually entered the building themselves. This is because of what is known as the law of common purpose [CCA s.8]. This law states that when two or more people form a common intention to do something unlawful, but only one of them goes on to commit an offence, each of the others is presumed to have aided that offence unless they can prove that they never foresaw it as a possible consequence of their original unlawful plan. In this way, a person who simply waits outside to keep a look-out for police and passers-by while another unlawfully enters the building, is just as guilty of unlawful entry as the main offender
Table 1: Maximum penalties for unlawful entry

Unlawful entry

Ordinary building

Dwelling-house

With intent to commit a simple offence

1 year imprisonment

2 years imprisonment

With intent to commit a crime carrying less than 3 years maximum imprisonment

3 years imprisonment

5 years imprisonment (7 years if actually occupied at time of unlawful entry)

With intent to commit any crime carrying more than 3 years maximum imprisonment

7 years imprisonment

10 years imprisonment

N.B For unlawful entries occurring at night time (between 9pm and 6am), the maximum penalties are twice the amounts stated above [CCA s.213(5)].

When armed with firearm or other dangerous or offensive weapon

20 years imprisonment

Life imprisonment

Possess housebreaking implements

Under the CCA, any person who is found armed with a firearm or any other weapon with intent to unlawfully enter a building is guilty of a crime and is liable to imprisonment for seven years [CCA s.215].

Under the SOA, any person who has in their custody or possession any picklock, key, crow, jack, bit, or other implement of housebreaking, may be found guilty of an offence unless that person can prove that they had a lawful excuse to possess it [SOA s.57(1)(e)]. The onus of proof is reversed. Where a person is found guilty of such an offence, the implement is forfeited to the Territory [SOA s.57(2)]. The maximum penalty is $1,000 and/or six months imprisonment; or 12 months imprisonment if it is the person's second or subsequent offence under this section [SOA s.58].

Right to defend property

A person is justified in using reasonable defensive conduct where that person believes it is necessary to protect their property from being unlawfully used, taken, interfered with, damaged or destroyed; or to prevent or remove trespassers. A person is also similarly justified where assisting another to protect their property [CCA s.29 and s.43BD].However, a person is not justified in using force intended to cause death or serious harm in order to protect property or to prevent or remove a trespasser [CCA s.29(3) and s.43BD(3)].

Sentencing for 'aggravated property offences'

In the Northern Territory, legislated sentencing guidelines apply in relation to 'aggravated property offences'. The stated purpose for this is 'to ensure that community disapproval of persons committing aggravated property offences is adequately reflected in the sentences imposed on those persons' [Sentencing Act s.78A].

The following offences against the CCA are defined by section 3 of the Sentencing Act as being 'aggravated property offences':
  • s.211 Robbery;
  • s.212 Assault with intent to steal;
  • s.213 Unlawful entry of buildings or attempted unlawful entry;
  • s.215 Person found armed with intent to unlawfully enter a building;
  • s.218(2) Unlawful use of motor vehicle in any circumstance where the maximum penalty is seven years imprisonment;
  • s.226B(3) Home invasion/invasion of business premises where serious damage is caused; and
  • s.241 Criminal damage. Unless there are exceptional circumstances in relation to the offence or the offender, a person who is found guilty and convicted of any of the above offences must be ordered to either:
    (a) serve a term of imprisonment that can only be fully suspended upon entry into a Home Detention Order; or
    (b) complete a Community Work Order [Sentencing Act s.78B].

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