Understanding Larceny And Other Offences In Victoria, Australia

Read the very important case of R v Dardovska [2003] VSCA 4 (26 February 2003) on Austlii. Pay close attention to paragraphs 23-31.

1. Discuss larceny at common law and Parliament’s introduction of “theft” to the Crimes Act?
2. Define the term “appropriate” (taking) as it applies to the concept of theft? 
3. Describe the concept of “intention to permanently deprive” as defined by the Crimes Act? 1. Read Porcaro v The Queen [2015] VSCA 244 (9 September 2015) especially paragraph 17 of the case. Discuss the elements and concept of “obtaining property by deception” and “obtaining a financial disadvantage by deception”.

2. Read R v Orgill [2007] VSCA 236 (26 October 2007) and set out the facts of the case and discuss what are the elements of “stalking” as said by the Court.

3. Explain the key difference between “robbery” and “armed robbery” 1 What is a “strict liability” offence?

2 What defence or principle is the case of Proudman v Dayman famous for?

3 Conduct some brief research and give your opinion as to why the law would make some offences “strict liability” and not require proving “mens rea”?

Definition of Larceny

1. Larceny at Common Law and Legislation

Larceny at common law is theft or stealing. It is the attempt by a person to permanently deprive another of a possession that is rightfully theirs. Stealing, as defined by the VIC law, encompasses all offences provided for under Division 2 of Part 1 of the Crimes Act 1958.[1] There are three elements that need to be proven by a complainant for one to be found guilty. First is that the item in question must be someone else’s possession other than the defendant.[2] Secondly, the taking away must be physical. Thirdly, the taking away must have been done without the owner’s consent. Considering the nature of the offence and the worth of item or possession in question, a larceny case can be subjected to summary judgment as an indictable offence.

2. Appropriate Taking

Appropriate taking as it applies to the concept of theft is assuming the rights to own a property of another person with his or her consent. As opposed to appropriation in theft, the legal owner of the property transfers his or her rights in the property to another person. The consent is proof of appropriate taking. Assuming legal rights on a property where permission has been granted or where it has been through an honest acquisition, does not amount to theft and is thus not punishable as a crime.

3. Intention to Permanently Deprive

Intention to permanently deprive as defined in the Crimes Act means having a convinced mental capacity to undertake the act. The state of the mind is malicious.[3] The accused party in a theft case has to be seen as treating the property which does not belong to him or her as their own regardless of the fact that the owner bears the rights. It encompasses situations where the accused party has an intention of returning the property to its owner for instance where one steals a voucher from a store and uses it to purchase items from the store. It also includes borrowing and as such, is considered to be equivalent to outright thinking.

1. Concept of “obtaining property by deception” and “obtaining financial advantage by deception”

A person is deemed to have obtained property by deception if he/she tells lies in order to gain possession of another person’s property.[4] The victim in this case surrenders the possession of his/her property in the belief that the offender is telling the truth. The offence of obtaining financial advantage bears a lot of similarity with the aforementioned offence. In this case, the offender dishonestly tell lies to his/her victim to give him or her financial advantage that the victim has no entitlement to provide. The offender may obtain such financial advantage by credit or money or loan. In both offences the offender is of the knowledge that he/she is dishonestly telling a lie.[5]

Elements of Larceny

2. Elements of stalking

As showcased in R v Orgill [2007] VSCA 236, stalking is dispelled as unwanted or repetitive surveillance by a person or group towards another individual.[6] There is an interrelation between stalking and harassment as well as intimidation. The court dictates that any unwanted contact between individuals that directly or indirectly pose a threat to the victim can be considered as stalking. If any of the contact has the ability to impact the victim’s life, the offence becomes punishable before a court of law.

3. Difference between robbery and armed robbery

A person is deemed to have committed ordinary robbery if they use violence or threaten to use violence in order to rip someone off the ownership of their property. If at all a weapon is used to execute a robbery it is therefore elevated to an armed robbery. Armed robberies are severely punished compared to ordinary robbery because in addition to the application of a weapon, there is also a victim’s crime. Armed robbers confront their victims and take their property using aggressive force.

1. Strict liability offence

A strict liability offence is a liability in which mens rea (‘’guilty mind’’) requires no proof in relation to any elements constituting the actus reus (act of guilt) although intent, recklessness or knowledge are required in relation to other elements that comprise the offence.[7] The liability is termed as strict because conviction will be meted on the accused despite genuine proof of ignorance of any factors that made their actions or negligence criminal. The accused may not be blameworthy in any way that is, there is no single criminal negligence, the least blameworthy grade of mens rea.

2. Defence or principle in the case of Proudman v Dayman

The case of Proudman v Dayman is famous due to the defence of honest and reasonable mistake of fact. This defence applies to offences which are deemed as ‘Strict Liability’. For example, traffic offences are considered as strict liability offences. This entails; Drunk-driving, over speeding or driving whilst disqualified. In the prosecution of such offences, the prosecutor does not have to prove any mental incapacitation; proof of the act is enough to constitute a crime. However though, there is a defence of honestly being mistaken as to particular facts in existence but had reasonable belief about the said facts had they existed, the conduct would not have been termed crime.

3. Why the law makes some offences “strict liability” without proving “mens rea”

The criminal liability dictates that there be a proof of mens rea and actus reus before the conviction of an individual. If the prosecution deems it unnecessary to prove mens rea in regard to actus reus elements, the offence is expressly disregarded and described as a strict liability. Strict liability offences require no proof of mens rea for some elements of the actus reus. The prosecution bears the burden of proving the causation of the actus reus and the strict liability offence.

David, Ormerod. Smith and Hogan Criminal Law: Cases and Materials. (Oxford University Press Paperback, 2005).

Kirchengast, T and Finlay, L. Criminal Law in Australia. (Lexis Nexis, 2014).

Lanham, David. Wood, David. Bartal Brownwyn and Evans, Rob. Criminal Laws in Australia. (Federation Press, 2006).

Molan, Mike. Modern criminal law. (Routledge, 2013).

Gotocourt.com.au. Stealing Offences in Victoria. (n.d.). <https://www.gotocourt.com.au/criminal-law/vic/stealing/>

Porcaro v The Queen [2015] VSCA 244

R v Orgill [2007] VSCA 236