It is defined under the Crimes Act 1900 (NSW). Any person, who takes and carries away anything without the consent of the owner of such thing, amounts to larceny. Such person must carry or take such thing away fraudulently and without any rights made in good faith, which is capable of being stolen with intent and permanently deprives the owner from such thing at the time of taking or carrying away such thing.
The term larceny can be defining in various ways, which includes the larceny by mistake, larceny by finding, larceny by a trick. Larceny by trick is defined as the possession of any property without the authorization of the owner and obtaining possession of the property with the false statement of the victim as was observed in Ward (1938)
The essential elements of larceny include the following:
Actus Reus (physical elements)
Mens Rea (Mental Elements)
On the facts here, it can be stated that Matilda has failed to provide appropriate service to Daisy. She assured her to provide her perfect match as per her requirement. However, she concealed the present situation of her business and about the ongoing investigation being conducted under the NSW Fair Trading. As per the given scenario, Matilda has committed fraud against Daisy, which amounts to the offence of basic larceny under section 4B, 94AA of the Crimes Act 1900.
According to Actus Rea, which defines property that is out of the owner’s possession as for being stolen previously under subsection 1(a) of Crimes Act 1900 and the term ‘property ‘refers to money as well. Here, actus rea has been committed, as Matilda has taken money from Daisy assuring her to find her perfect match. Matilda was aware of her business situation and the requirements of Daisy but dishonestly claimed $10 grand from Daisy, thus, establishing guilty mind under subsection (b) of the Act, defining mens rea.
Section 4B of the Act has defined the dishonesty or fraudulency where the defendant is aware of the dishonesty that he/she is committing. In this case, Matilda has fraudulently entered into the contract with Daisy where she was not able to provide the actual service and despite being aware of the present business condition, she dishonestly obtained the money from Daisy.
The above facts establish the commission of basic larceny that is an offence under criminal law. Section 117 of Crimes Act 1900 stipulates that person alleged to have committed commission of larceny is entitled to be punished in NSW.
Further, Matilda has committed the offence of larceny by trick against Daisy. She first failed to provide the appropriate service to her and later refuse to refund the amount. Matilda tricked Daisy by assuring her to provide a perfect match. The Crimes Act section 192 D has defined the dishonesty of fraudulence is established when there arises financial disadvantage. In this part the section, 117 of the Crimes Act 1900 defined the punishment for larceny. She has committed the larceny of section 117 of the Crimes Act 1900.
Therefore as per the case study, Matilda has committed the offences, which includes the basic larceny where the Actus reus occurred. Matilda had obtained the consent of Daisy deceptively or fraudulently. The Mens rea occurred when Matilda has claimed the amount from Daisy with the intention to deceive her, failed to provide actual service, and committed offence of Means rea. Under such circumstances, 117 of the Crimes Act 1900 defined the punishment for larceny. Persons who are alleged to have committed the offence of larceny are entitled to be imprisoned for 5 years.
As defined under the Crimes Act 1900 (NSW) when any person takes and carries away anything without the consent of the owner of such thing, amounts to larceny. Such person has fraudulently and without any rights made in good faith, permanently deprives the owner from such thing, which is capable of being stolen with intent; it amounts to commission of larceny.
The essential elements that must be present to establish larceny are enumerated as below:
Robbery
Section 94 of the Crimes Act stipulates the offence of robbery and includes the offence of assault with the intent to rob and steal from any person. The essential elements of robbery have been observed in Smith v Desmond [1965]. It includes the following essential elements:
It includes elements of larceny (stealing) and assault (to cause unlawful physical contact or apprehension of immediate unlawful physical contact as observed in Gnosil [1824].
Assault
According to section 61 of the Crimes Act, the commission of assault is considered as an offence and the accused is entitled to be imprisoned for 2 years. The elements of assault as described in Fagan v Commissioner of Metropolitan Police [1969] are enumerated as below:
Actus rea
It refers to the guilty mind of a person to be involved in a criminal offence. The elements of mens rea in the offence of assault are recklessness or intention. The intention to cause unlawful physical violence or cause another person to apprehend immediate unlawful physical violence as was held in Smith [1961] AC 290.
According to section 25A and 25B of the Act, any act causing unlawful violence resulting in death of the other person amounts to assault causing death. In the cases of Perciali [1986], Williams (1990), D [1984] and Venna [1976], the mens rea has committed by the defendant towards the plaintiff.
On the facts here, Sam has deprived Matilda from her ring without her consent and this act may amount to the commission of larceny. In Knight (1988), Collins vs Wilcock [1984], Barton vs. Amstrong [1969] criminal liability of Actus reus has been established by courts due to the fulfillment of the essential elements necessary to establish commission of the offence of assault.
Further, Sam can be charged with the offence of robbery, as the elements to establish robbery are present in the conduct of Sam. As was observed in Smith v Desmond [1965], Sam threatened Matilda that if she gives the ring only then he will excuse her from refunding the money to Daisy. He caused Matilda to apprehend immediate physical injury when he said he and his gang would cause her physical injury. There was some level of threat or fear caused to Matilda resulting, which she gave her ring and Sam took the same. Thus, the conduct fulfills the requirements of robbery under section 94 of the Act.
Furthermore, Sam can be charged with assault as his conduct fulfills the requirements necessary to establish assault. Firstly, Sam caused Matilda an apprehension to cause immediate physical injury when he threatened that his gang would cause her physical injury if she did not refund the money to Daisy. Secondly, the conditional threat that if Matilda gave her ring, she will not have to refund the money was unlawful and that she gave the ring, without her consent to such conditional threat. In Rosa v Samuels [1969], Police v Greaves [1964] and Tuberville vs. Savage (1669), the court established that conditional threats are unlawful if the responses to such threats are not proportionate to the original threat.
Thirdly, Matilda had an apprehension of sustaining immediate physical injury and that suffered post-traumatic stress disorder, treating herself from a psychiatrist.
Moreover, Sam’s conduct towards Matilda establishes mens rea as well. This is established from the fact when he was reckless while threatening Matilda causing her to apprehend immediate physical injury. Such recklessness was intentional when he deliberately put Matilda to fear for her life and refund the money to Daisy.
When a person commits the offence of assault he is entitled to be punished with imprisonment for 2 years unless such assault results in grievous body injury, in case of which the penalty imposed on such accused shall be become severe as stipulated under section 61 of the Crimes Act 1900. As per the facts of the case, the offence of assault is established when there is an immediate and unlawful physical injury or violence or the causation of an apprehension of immediate physical injury against another person. It includes threatening and fear caused by one person to another where the response to such threat is disproportionate to the original threat. Although there is no actual, physical contact but there is an apprehension to inflict immediate injury upon the other person that is taken into consideration while determining commission of assault.
On the facts here, the conduct exhibited by Sam establishes that he has deprived Matilda of her ring permanently by threatening her. This establishes the presence of actus rea and mens rea in his conduct towards Matilda as well. Sam threatened Matilda causing her to apprehend immediate injury and she was subjected to unconditional threat to which she gave her ring without her consent. This establishes that her response or self-defense against such unconditional threat was disproportionate to the original threat. The threatening of being inflicted with physical injury if police was involved resulted in post-traumatic stress disorder in Matilda for which she is being subjected to psychiatric treatment.
Conclusion
Sam is entitled to be criminally liable for committing larceny, assault and robbery as per the facts of the case. However, under the given circumstances, he is primarily entitled to be criminally liable for committing robbery against Matilda.
Barton vs Amstrong [1969] 2NSWLR 451
Buttle (1959) 60 SR (NSW) 320
Croton (1967) 117 CLR 326
Foster (1967) 118 CLR 117
Kelly (1999) QB 621; [1998] 3 ALL ER 741
Knight (1988) 35A Crim 11
Kolosque vs. Miyazaki (1995) NSWSC
Lopatta (1983) 35 SASR 101
McPherson vs. Brown (1975) 12 SASR 174
Minigall vs. McCammon [1970] SASR 82
Perciali [1986] 42 SASR 46
Peters (1998) 192 CLR 493; 151 ALR 51
Police vs Greaves [1964] NZLR 295
R vs. Daley (1879) 12 SCR (NSW) 151
Riley (1853) 169 ER 674
Rosa vs Samuels [1969] SASR 205
Ryan vs Kuhl [1979]
Shields & Ors v New South Wales Crime Commission [2007] NSWCA 309
Tuberville vs Savage (1669) 86 ER 684
Wallis vs. Lane [1964] VR 293
Ward (1938) 38 SR (NSW) 308
Williams (1990) 50 A Crim 213
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