Part 5Offences of dishonesty

Part 5—Offences of dishonesty 130—Interpretation benefit means— (a) a benefit of a proprietary nature; or (b) a financial advantage; or (c) a benefit of a kind that might be conferred by the exercise of a public duty in a particular way; deal—a person deals with property if the person— (a) takes, obtains or receives the property; or (b) retains the property; or (c) converts or disposes of the property; or (d) deals with the property in any other way; deceive means to engage in deception; deception means a misrepresentation by words or conduct and includes— (a) a misrepresentation about a past, present or future fact or state of affairs; or (b) a misrepresentation about the intentions of the person making the misrepresentation or another person; or (c) a misrepresentation of law; detriment means— (a) a detriment of a proprietary nature; or (b) a financial disadvantage; or (c) loss of an opportunity to gain a benefit; or (d) a detriment of a kind that might result from the exercise of a public duty in a particular way; document includes any record of information whether in documentary, magnetic, electronic or other form; jury includes, where an offence is tried by a judge or magistrate sitting alone, the judge or magistrate acting as a tribunal of fact; local conditions in relation to a particular situation includes— (a) the physical environment; or (b) the cultural environment, including— (i) language; (ii) law and customs; (iii) the currency; (iv) the level of prices that generally prevails for goods and services of various kinds; machine means a machine, computer or device that stores information in electronic, magnetic or other form and includes anything designed for operation with such a machine, such as a credit card, smart card or other device; manipulate, in relation to a machine, includes use of the machine to produce a particular result or effect and any act that affects how the machine operates or the result or effect of the machine's operation; 1 An alteration to a computer program. 2 An alteration to a computer database. owner of property means— (a) a person who has a proprietary interest in the property other than an equitable interest arising under— (i) an agreement to transfer or grant an interest in the property; or (ii) a constructive trust; or (b) in relation to property subject to a trust (other than a trust arising from an agreement to transfer or grant an interest in the property or a constructive trust)—a person who has a right to enforce the trust; or (c) in relation to property received from or on account of another by a person who is under an obligation to deal with the property or its proceeds in a particular way—the person from whom, or on whose account, the property was received; or (d) a person who is entitled to possession or control of the property, (and, if there are 2 or more owners of property, a reference in this Part to the owner is a reference to both or all of them); proceeds of property means money or property into which property has been converted by a transaction or series of transactions (involving sale, exchange, or any other form of dealing); property means real or personal property and includes— (a) money; (b) intangible property (including things in action); (c) electricity; (d) a wild creature that is tamed or ordinarily kept in captivity or is reduced (or in the course of being reduced) into someone's possession; steal—a person steals property if the person commits theft of the property or obtains it by deception; and stolen has a corresponding meaning; stolen property means property stolen within or outside the State, but property ceases to be stolen property when— (a) it is restored to the person from whom it was stolen or other lawful custody; or (b) the person from whom it was stolen ceases to have a right to restitution; tainted property means stolen property or property obtained from any other unlawful act or activity (within or outside the State), or the proceeds of such property (but property ceases to be tainted when it passes into the hands of a person who acquires it in good faith, without knowledge of the illegality, and for value); transaction includes a gift. 131—Dishonesty (1) A person's conduct is dishonest if the person acts dishonestly according to the standards of ordinary people and knows that he or she is so acting. (2) The question whether a defendant's conduct was dishonest according to the standards of ordinary people is a question of fact to be decided according to the jury's own knowledge and experience and not on the basis of evidence of those standards. (3) A defendant's willingness to pay for property involved in an alleged offence of dishonesty does not necessarily preclude a finding of dishonesty. (4) A person does not act dishonestly if the person— (a) finds property; and (b) keeps or otherwise deals with it in the belief that the identity or whereabouts of the owner cannot be discovered by taking reasonable steps; and (c) is not under a legal or equitable obligation with which the retention of the property is inconsistent. (5) The conduct of a person who acts in a particular way is not dishonest if the person honestly but mistakenly believes that he or she has a legal or equitable right to act in that way. A takes an umbrella violently from B honestly but mistakenly believing that B has stolen A's umbrella and that A is entitled to use force to get it back. In fact, it belongs to B. A is charged with robbery. A cannot be properly convicted on this charge because of his honest but mistaken belief (however unreasonable). However, he may still be guilty of an assault. (6) A person who asserts a legal or equitable right to property that he or she honestly believes to exist does not, by so doing, deal dishonestly with the property. A takes an umbrella violently from B honestly believing that the umbrella belongs to A and that A is entitled to possession of the umbrella (but knowing that she is not entitled to use force to get it back). The assertion of that possessory right (whether or not correctly founded in law) is not dishonest (and therefore cannot amount to theft) although the means used to get the umbrella back may well amount to some other offence. 132—Consent of owner (1) A reference to the consent of the owner of property extends to— (a) the implied consent of the owner (or owners); or (b) the actual or implied consent of a person who has actual or implied authority to consent on behalf of the owner (or owners). (2) A person is taken to have the implied consent of another if the person honestly believes, from the words or conduct of the other, that he or she has the other's consent. (3) However, a person who knows that another's consent was obtained by dishonest deception is taken to act without consent. 133—Operation of this Part (1) This Part operates to the exclusion of offences of dishonesty that exist at common law or under laws of the Imperial Parliament. (2) However, the common law offence of conspiracy to defraud continues as part of the criminal law of the State. Division 2—Theft 134—Theft (and receiving) (1) A person is guilty of theft if the person deals with property— (a) dishonestly; and (b) without the owner's consent; and (c) intending— (i) to deprive the owner permanently of the property; or (ii) to make a serious encroachment on the owner's proprietary rights. (a) for a basic offence—imprisonment for 10 years; (2) A person intends to make a serious encroachment on an owner's proprietary rights if the person intends— (a) to treat the property as his or her own to dispose of regardless of the owner's rights; or (b) to deal with the property in a way that creates a substantial risk (of which the person is aware)— (i) that the owner will not get it back; or (ii) that, when the owner gets it back, its value will be substantially impaired. (3) It is possible to commit theft as follows: (a) a person may commit theft of property that has come lawfully into his or her possession; (b) a person may commit theft of property by the misuse of powers that are vested in the person as agent or trustee or in some other capacity that allows the person to deal with the property. Suppose that land is vested in a trustee in a fiduciary capacity. She is empowered under the instrument of trust to mortgage the land for the purposes of the trust. The trustee dishonestly mortgages the land as security for a personal liability that is unrelated to the trust. In this case, the trustee commits theft of the interest created by the mortgage. (4) If a person honestly believes that he or she has acquired a good title to property, but it later appears that the title is defective because of a defect in the title of the transferor or for some other reason, the later retention of the property, or any later dealing with the property, by the person cannot amount to theft. (5) Theft committed by receiving stolen property from another amounts to the offence of receiving but may be described either as theft or receiving in an instrument of charge and is, in any event, punishable as a species of theft. (6) If a person is charged with receiving, the court may, if satisfied beyond reasonable doubt that the defendant is guilty of theft but not that the theft was committed by receiving stolen property from another, find the defendant guilty of theft. 135—Special provision with regard to land and fixtures (1) A trespass to land, or other physical interference with land, cannot amount to theft of the land (even if it results in acquisition of the land by adverse possession). (2) A thing attached to land, or forming part of land, can be stolen by severing it from the land. 136—General deficiency (1) A person may be charged with, and convicted of, theft by reference to a general deficiency in money or other property. (2) In such a case, it is not necessary to establish any particular act or acts of theft. Division 3—Robbery 137—Robbery (1) A person who commits theft is guilty of robbery if— (a) the person— (i) uses force, or threatens to use force, against another in order to commit the theft; or (ii) uses force, or threatens to use force, against another in order to escape from the scene of the offence; and (b) the force is used, or the threat is made, at the time of, or immediately before or after, the theft. (b) for an aggravated offence—imprisonment for life. (3) If 2 or more persons jointly commit robbery in company, each is guilty of aggravated robbery. Suppose that A and B plan to steal from a service station. A assaults the attendant while B takes money from the till. In this case, each is guilty of robbery on the principle enunciated by the High Court in McAuliffe v R ((1995) 183 CLR 108). Robbery committed in these circumstances is to be treated as aggravated robbery. In other words, the principle that, where robbery is committed jointly, each participant in the offence is guilty of aggravated robbery applies irrespective of whether all elements of robbery can be established against a particular person. Division 4—Money laundering and dealing in instruments of crime 138—Money laundering (1) A person who engages, directly or indirectly, in a transaction involving property the person knows to be tainted property is guilty of an offence. In the case of a natural person—Imprisonment for 20 years. In the case of a body corporate—$600 000. (2) A person who engages, directly or indirectly, in a transaction involving tainted property in circumstances in which the person ought reasonably to know that the property is tainted is guilty of an offence. In the case of a natural person—Imprisonment for 4 years. In the case of a body corporate—$120 000. (3) A transaction includes any of the following: (a) bringing property into the State; (b) receiving property; (c) being in possession of property; (d) concealing property; (e) disposing of property. 138A—Dealing in instruments of crime (1) A person who deals in property is guilty of an offence if— (a) the person knows that— (i) the property is an instrument of crime; and (ii) the dealing may facilitate the commission of a crime or assist an offender to escape detection or avoid any other consequence of the crime; and (b) the person's conduct is dishonest. In the case of a natural person—Imprisonment for 20 years. In the case of a body corporate—$600 000. (2) A person who deals in property is guilty of an offence if— (a) the property is an instrument of crime; and (b) the person— (i) ought reasonably to know that it is an instrument of crime; and (ii) is reckless about whether the dealing may facilitate the commission of a crime or assist an offender to escape detection or avoid any other consequence of the crime; and (c) the person's conduct is dishonest. In the case of a natural person—Imprisonment for 4 years. In the case of a body corporate—$120 000. crime means— (a) an indictable offence against the law of the State or a corresponding offence against the law of the Commonwealth, another State or a Territory, or a place outside Australia; or (b) any of the following offences: (i) an offence of a kind that is required to be prosecuted, and dealt with by the Magistrates Court, as a summary offence under a provision of Part 5 Division 2 of the Controlled Substances Act 1984; or (ii) an offence against section 68(3) of the Criminal Law Consolidation Act 1935; or (iii) an offence against section 28(1)(a) of the Summary Offences Act 1953; instrument of crime means— (a) property that has been used or is intended for use for or in connection with the commission of a crime; or (b) property into which any such property has been converted. Division 5—Deception 139—Deception A person who deceives another and, by doing so— (a) dishonestly benefits him/herself or a third person; or (b) dishonestly causes a detriment to the person subjected to the deception or a third person,