LWB 232 Criminal Presentation Week 5 Handout

LWB 232 Criminal Presentation Week 5 Handout

LWB 232 Criminal Presentation Week 5 Handout Richard Gallagher

Issues:

  • Planning the crime s.7
  • Stealing the Wallet s.391
  • Baker complicity with regard to the rape of Mary
  • Entry under false pretences
  • Burglary
  1. Stealing the wallet has Baker committed an offence?

 Stealing and Robbery (If violence can be proved)

Is violence used to move Mary into the room? Not oblivious by the scenario and not a critical issue to weeks relevant material, but if Mary is trying to prove rape she would probably argue she did not enter the bedroom voluntarily. This hence would aggravate the charge of stealing to violence.

Stealing s.391

Elements:

  1. Capable of being stolen – s.391 & s.390
  2. Asportation – s.391 (6)
  3. Fraudulent taking on conversion – s.391 (2)
  4. Ownership – s.391 & s.391(7)

I. 3 sub elements I- Every inanimate thing (chose in possession)

II - Moveable – Billing v. Pill

III- Property of another

II. s. 391 (6)

III. Taking – Miller V. Page

IV. Ownership – Illich

Regulatory offence Act does not apply as not in shop for $150 or less.

Punishable – 5 years imprisonment but aggravated by violence therefore offence is no robbery hence imprisonment for up to 14 years.

Conclusion: Baker most probably would surely be convicted of stealing of the wallet, whether the aggravated offence of robbery is proven would depend on evidence at trial.

2.Breaking and Entering / Burglary

s. 419 and aggravated by night therefore punishable by life imprisonment.

s.7 & s.8 are not particular relevant in that Baker is the primary offender so there is no need for him tried as a party to the crime.

3.Baker with regard to the assault on Mary can Baker be found guilty as a party to the offence?

s.7 1(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.

Offence is assault s. 245

Misdemeanor punishable b 3 years imprisonment.

Baker has omitted to stop the assault of Mary.

Subjectively ascertain common objective or enterprise.

Things necessarily in contemplation

  • Yes. Dynamic change in the plan
  • Foresee assault to Mary as a means of stealing.

Therefore under s. 7 1(b) Baker guilty of the assault as a party.

4. Baker and Able pretending to be technicians.

s.514 Personating

Punishable by 3 years imprisonment

Minor issue, Baker’s silence would still make him an executor. Baker would be found guilty.

  1. Able’s Rape of Mary is Baker guilty as a party to the offence under s.7/s.8.

Topical Issues:

Extraneous Factors:

Did Mary scream?

Was it contemplated by the parties prior to the Crime?

Was Able a known sex offender?

-These are issues that are noted for discussion in the presentation.

Rape – (The offence)

s. 347 Defined

s. 348 Punished – Life imprisonment

4 Elements

  • Any person
  • Carnal Knowledge
  • Without consent or with consent which has been vitiated

The enabler under paragraph 7(1)(b)

-The act must be for the purpose of enabling and this makes it clear that there must be knowledge of the offence that is or might be committed. R v. Jervis @375 376

-Things necessarily in the contemplation of the participants. Johns v. R (1979) 28 ALR 155 @ 158 – 159

-Includes things foreseen, but not agreed to. McAuliffe (1995) 130 ALR 26

-The participants will consent to changes in the plan as it occurs, and those changes must thus be included in the plan. They must abide by those changes in the plan until the end. Johns v. R.Plan to rob a person a gun was used and a person died. “Changes of plan occurred in the presence of the defendant, he had therefore assented to them and was thus part of the plan.

-Miller’s Case. Held: The common plan became and extended common plan, it was enlarged because the defendant knew that his mate killed occasionally, yet continued the common plan. Therefore the dynamic change that occurred enlarged the common plan, to which he was subjectively lending his mind.

-R v. Beck’s – Guilty even though not physically involved in the killing.

-Clarkson. There must be an intentional or willful encouragement in the commission of the offence.

Baker would not be found guilty of the alleged rape of Mary. It does not matter whether or not Able is found guilty as long as the offence is established. Baker would not be guilty because it was not contemplated that when Mary opened the door and the plan changed that either would rape her. Assault would be contemplated but Rape not. The only issues that may change this are those discussed above.

Guilty / Not-Guilty
Stealing the wallet
Impersonation
Assault
Burglary / Rape