June 24, 2013

Dishonesty and Property Offence Case Studies

graffitiReview real dishonesty and property offence case studies in which O’Brien Solicitors have acted. See the results we have achieved and what our clients have said about us.

Break and Enter

NZK – Strong submissions made by defence during sentencing hearing

NZK was charged with and pleaded guilty to firing of a firearm in a public place and an attempted break and enter.  During the sentencing hearing, the defence made submissions with regards to NZK’s remorse and prospects for rehabilitation. Accordingly, he was sentenced to a relatively short sentence given the objective seriousness of the offences.

Key words: Accessory after the fact of firing a firearm in a public place – Section 350 Crimes Act 1900 – section 93G Crimes Act 1900 – attempted aggravated break and enter, Section 113 Crimes Act 1900 – sentence backdated to take account of time served

KBEarly guilty plea taken into consideration when sentencing

KB was involved in a series of break and enters into schools. He pleaded guilty to the charges of aggravated break and enters and receiving stolen property. The sentencing judge took into account his early guilty plea as well as his personal problems with addiction. He was given a relatively light sentence as a result.

Key words: Getaway driver – aggravated break and enters – section 112 Crimes Act 1900  – school break-ins – receiving stolen property – section 188 Crimes Act 1900  – plea of guilty

FCClient sentenced to good behaviour bond after guilty plea to break and enter charge

The complainant was verbally abusing another neighbour late one night. FC confronted the complainant who then retreated back into his apartment. FC was provoked and forced his way into the apartment with the intent to intimidate the complainant. The defence entered into a successful plea bargain in which FC pleaded guilty to the charge of break and enter with intent to commit a serious indictable offence. He was sentenced to a good behaviour bond.

Key words: Aggravated break and enter with intent to commit serious indictable offence, section 113 Crimes Act 1900 (NSW) – drunken neighbour – provoked by verbal abuse – good behaviour bondsection 9 Crimes (Sentencing Procedure) Act 1999

LM –  Client found not guilty after being charged with break and enter with intent to commit a serious indictable offence

LM was charged with breaking into a hardware store and stealing tools. He pleaded not guilty to the charge. We represented LM in his hearing where we argued that the prosecution’s case was based on circumstantial evidence. LM was found not guilty and the charges were dismissed.

Key words: Break and enter with intent to commit a serious indictable offence, section 112 Crimes Act 1900 (NSW) – plea of not guilty – acquittal

DCCharges against client dismissed after defended hearing

DC was charged with break and enter to which he pleaded not guilty. The court was not satisfied beyond reasonable doubt that DC was guilty of the offence as there were issues with the ability of the witnesses to identify the offender. The charges were dismissed accordingly.

Key words: Break and Enter – section 112 Crimes Act 1900 (NSW) – plea of not guilty – finding of not guilty

XWX – Police withdrew charges after defence successfully argued that photo identification was prejudicial against client

During a home invasion three men appeared and assaulted the victims, demanding money. The police requested that the victims help identify one of the male offenders. There were several issues with the photo board. One of the witnesses positively identified XWX as the offender but could no longer be found to attend court to give evidence. The other witness identified XWX, another man and raised the possibility of another person. The police relied on the identification made by the first witness to arrest and charge XWX. The defence successfully applied to exclude the evidence of the identifications made by the two witnesses after arguing that it was unfairly prejudicial to the client. The police withdraw the charges.

Key words: Enter dwelling house with intent to commit a serious indictable offence – Crimes Act 1900 (NSW) s 111 – Assault with intent to rob with infliction of corporal violence – Crimes Act 1900 (NSW) s 95 – Identification photoboard – General discretion to exclude evidence – Evidence Act 1995 (NSW) s 135 – Exclusion of prejudicial evidence in criminal proceedings – Evidence Act 1995 (NSW) s 137

Stealing

TXK – Successful appeal of conviction for stealing charges

TXK was charged with stealing and, alternatively, receiving stolen goods. This was in relation to an incident where police had found batteries in his car that matched the description of some batteries that had been reportedly stolen the same morning. He was convicted of stealing in the Local Court. We assisted him in appealing the conviction in the District Court. The appeal was upheld after the defence successfully argued that TXK was merely a passenger and did not touch or move the batteries.

Key words: Larceny, Section 117 Crimes Act 1900 – alternative charge, receiving unlawfully obtained goods, Section 189 Crimes Act 1900 – convicted at Local Court – appeal to District Court – appeal upheld – conviction quashed

ASGProsecution unable to prove that items possessed by client were stolen

ASG was pulled over and searched by police. After the police found several items in his bag, he was charged with two counts of possessing stolen property and one count of possessing housebreaking implements. During his hearing, the defence successfully argued that the prosecution could not prove beyond reasonable doubt that the items were stolen. He was found not guilty.

Key words: Contested hearing – two charges of goods in personal custody suspected of being unlawful, Section 527C Crimes Act 1900 – possess housebreaking implements, Section 114 Crimes Act 1900 – possible unlawful search

TYK Conviction for stealing quashed upon successful appeal

Police found a large number of stolen items in TYK’s vehicle and charged him with stealing. He was not the only occupant of the motor vehicle, and pleaded not guilty to stealing. He was convicted in the Local Court and sentenced to 12 months imprisonment. We represented TYK in his appeal against conviction in the District Court. The appeal judge found that he could not be satisfied that TYK had stolen the property and quashed the conviction. TYK was immediately discharged.

Key words: District Court appeal against conviction – convicted in Local Court after hearing of larceny – section 117 Crimes Act 1900 – appellant sentence to imprisonment – appeal successful conviction quashed – verdict of not guilty entered

Larceny

MRY – Half of the client’s charges dropped, lenient sentence ordered for the others

MRY was charged with six property related offences. The defence successfully argued that several of the charges were inappropriate which resulted in three of the charges being withdrawn. MRY pleaded guilty to the remaining three charges of larceny. We successfully represented MRY in his sentencing hearing which resulted in a lenient sentence being ordered.

Key words: Larceny – Section 117 Crimes Act 1900 – unauthorised entry of vehicle – Section 6A Summary Offences Act 1988 – breaking into house and committing serious indictable offence – Section 112 Crimes Act 1900 – inappropriate charges withdrawn – plea of guilty to remaining charges – submissions upon sentencing

HS – Larceny charge against client dismissed

The victim had her mobile phone stolen at a shopping mall food court. HS was identified from the CCTV footage. The court found that the prosecution had not made out their case and the larceny charge was dismissed.

Key words: Larceny – section 117 Crimes Act 1900 s 117 – stolen mobile phone – froyo kiosk

MH – No conviction recorded for client after pleading guilty to series of property offences

MH was charged with stealing from shops and a series of offences related to passing off stolen goods as her own. She pleaded guilty to all charges. We represented MH in her sentencing hearing where emphasis was placed on MH’s psychological condition and the impact that this had on the commission of the offences. The sentencing magistrate recorded no conviction on the condition that MH enter into a good behaviour bond.

Key words: Larceny – section 117 Crimes Act 1900 (NSW) – receiving stolen property, furnish false statement – plea of guilty – no conviction bond – section 10 Crimes (Sentencing Procedure) Act 1999 (NSW).

FPNo conviction recorded for medical professional

Our client was charged with the larceny of several items. He was worried about getting a criminal record as he was a medical professional. We represented FP in his sentencing hearing where he successfully got the charges dismissed on the condition that he enter into a good behaviour bond. No conviction was recorded as a result.

Key words: Larceny; section 10 Crimes (Sentencing Procedure) Act; Dismissal of Charges; No conviction recorde

RDRD sentenced to a good behaviour bond after pleading guilty to larceny

RD was caught attempting to shoplift several items from a department store. He was charged with and pleaded guilty to 2 counts of larceny. We successfully represented RD in his sentencing hearing where RD received a good behaviour bond.

Key words: Shoplifting – Larceny – section 117 Crimes Act 1900 – Guilty Plea – Good Behaviour Bond, section 9 Crimes (Sentencing Procedure) Act 1999

GP – Shoplifting charges dismissed without conviction

GP and his friend were charged with shoplifting from a supermarket. The co-accused admitted to the offence and told police that GP was not involved with the shoplifting. The Local Court accepted submissions of GP’s limited involvement and his lack of prior convictions and accordingly dismissed the matter without conviction.

Key words: Dishonesty offence – Shoplifting – Supermarket – section 10 Crimes (Sentencing Procedure) Act

Armed robbery

HAE – Client given a suspended sentence after pleading guilty to using a weapon to commit an armed robbery

HAE was charged with and pleaded guilty to using a weapon to commit an armed robbery. We represented HAE in his sentencing hearing where a number of psychiatric and psychological reports were submitted confirming HAE’s drug abuse and gambling addiction. The sentencing judge determined that a sentence of imprisonment was not necessary and imposed a 2 year suspended sentence instead.

Key words: Robbery with an offensive weapon – section 97 Crimes Act 1900 (NSW) – plea of guilty – suspended sentence imposed by District Court – section 12 Crimes (Sentencing Procedure) Act 1999 (NSW).

KE – Client given relatively low sentence after being charged with two armed robberies

Client charged with two armed robberies involving the use of a sharp weapon. During his sentencing hearing the defence argued that he had good prospects for rehabilitation. He was given a 3 year sentence which was less than the starting point of 5 years.

Key words: Robbery armed with offensive weapon – section 97 Crimes Act 1900 s 97 – plea of guilty – sentenced 6 months non-parole by District Court

VCN – Armed robbery and using weapon to resist arrest

VCN was involved in a robbery of a restaurant where he used a small knife to threaten a customer to hand over his wallet. The police traced the getaway vehicle to his house. He tried to ram his way out of the parking space when police appeared at his place. VCN was arrested and charged with armed robbery and using a weapon to assist arrest. Our defence lawyer successfully argued that the case fell within a specific category covered by a guideline judgment. This limited the judge in the sentences available.

Key words: armed robbery – using a weapon to resist arrest – guideline judgment

HAE – Lenient sentence given to client charged with armed robbery

HAE was charged with using a weapon to commit an armed robbery of a convenience store. After pleading guilty in the District Court, we represented him in his sentencing hearing. The defence tendered a number of psychological reports confirming the client’s gambling addiction and drug abuse. The judge determined that the client was an exceptional case, and that a sentence of imprisonment would not need to be imposed given the history of our client, and his prospects for the future.

Key words: using a weapon to commit an armed robbery – guilty plea – District Court – sentencing hearing – psychological report

SH – Negotiations with DPP results in lesser charges

SH was charged with robbery in company and two counts of assault occasioning actual bodily harm. Representations were made to the DPP and as a result SH pleaded guilty to the lesser charges of steal from person and assault occasioning actual bodily harm. He was sentenced to a 12 month suspended sentence.

Key words: steal from person – assault occasioning actual bodily harm – guilty plea – suspended sentence

Receiving Stolen Goods

AG – Light sentences given after client pleaded guilty to range of offences

When AG was stopped by police he gave them a fake name. When police asked for his correct details AG turned and ran through the yards of private residential premises. Police caught him and seized a stolen watch. He spat on one of the police officers when he was searched at the police station. He pleaded guilty to all charges. No conviction was recorded for the unlawful entry on enclosed land offences, and he was sentenced to four months imprisonment for the spitting, assault and possession of stolen goods.

Key words: Unlawful entry on inclosed lands, Inclosed Lands Protection Act 1901 s 4(1) – possession of unlawfully obtained goods, Crimes Act 1900 s 527C(1)(a) – assault police officer in execution of duty, Crimes Act 1900 s 60(1) – conviction with no other penalty, Crimes (Sentencing Procedure) Act 1999 s 10A – police pursuit through backyards – stolen watch – plea of guilty

Goods in custody

DB – Young client dismissed of stolen goods in custody charge

DB was a young person charged with goods in custody after police found an iPod in his possession. The defence objected to certain admissions made by the client as they were made in the absence of a support person. These admissions were excluded. The charges were dismissed after the prosecution’s case failed to give rise to a reasonable suspicion that the iPod was stolen or otherwise unlawfully obtained.

Key words: Goods in custody – section 527C Crimes Act 1900 (NSW) – plea of not guilty – charge dismissed

Money Laundering

TCH – Defence representation for client charged with money laundering offence

TCH was arrested and charged with money laundering. He pleaded guilty. We represented him during his sentencing hearing where submissions were made that TCH was merely a pawn in the money laundering syndicate. The court made an order for imprisonment, however, given the amount of time he had already spent in remand, he was eligible for release 5 days after the hearing.

Key words: Possessing money reasonably suspected of being proceeds of crime – Section 400.9(1) Criminal Code (Cth) – plea of guilty – mitigating factors submitted upon sentencing – imprisonment back-dated to account for time served

Dishonestly obtaining property

RNJ – Client’s sentencing dealt with by way of mental health provisions

Client was charged with dishonestly obtaining property after he created a scheme involving ordering products, cancelling the credit cards he supplied to the company and then selling the property online. He pleaded guilty to the charge. The defence applied to have the sentence dealt with by the mental health provisions. This was successful with RNJ given a good behaviour bond.

Key words: Dishonestly obtain property by deception (fraud), Section 192E Crimes Act 1900 – Section 32 Mental Health (Criminal Procedure) Act 1990 – plea of guilty – good behaviour bond, Section 9 Crimes (Sentencing Procedure) Act 1999 – partial compensation order

JJ Jury finds client not guilty of fraud and dealing with proceeds of crime

JJ was the recipient of money which had been fraudulently claimed by the ATO. She was charged with dealing with proceeds of crime and fraud. She gave evidence before a jury that she had been deceived by a drug dealer and had no idea where the money had come from. The jury accepted JJ’s evidence and was found her not guilty.

Key words: Fraud – section 192E Crimes Act 1900 (NSW) – Obtained benefit by deception – Dealings proceeds of crime – Not guilty after trial by jury

Damage to Property

MRT – Client found not guilty for all charges

MRT and the complainant were arguing at their accommodation. There were allegations that MRT shoved the complainant, and damaged her door. Whilst representing MRT in his hearing, we were able to cast doubt on the testimony of the complainant. Our client was found not guilty of all three charges: attempting to stalk or intimidate, common assault and intentionally/recklessly damaging property.

Key words: Domestic-related incidents – attempt to stalk or intimidate, Section 13 Crimes (Domestic and Personal Violence) Act 2007 – common assault, Section 61 Crimes Act 1900 – intentionally/recklessly damage property, Section 195 Crimes Act 1900 – found not guilty

DLO – Client given relatively light sentences for property damage offences

DLO was caught by security cameras on a spree of property damage. He was found guilty of all charges but was given relatively light sentences.

Key terms: Common assault, Section 61 Crimes Act 1900 – behave in offensive manner near public place, Section 4 Summary Offences Act 1988 – damage property by fire, Section 195 Crimes Act 1900 – destroy or damage property, Section 195 Crimes Act 1900 – contested hearing – fine – good behaviour bond, Section 9 Crimes (Sentencing Procedure) Act 1999

JENo conviction recorded after client pleaded guilty to destroying or damaging property

JE was arrested and charged with destroying or damaging property after he was caught deflating the tyre of a police vehicle. After pleading guilty, the court dismissed the charges without conviction on the condition that JE enter into a good behaviour bond.

Key words: section 10 Crimes (Sentencing Procedure) Act 1999, Good Behaviour Bond, Destroying or Damaging Property

Graffiti

JYLGraffiti charges against overseas artist dismissed

JYL was spotted by police writing a poem on a wall in Newtown. She was charged with intentionally marking premises without consent (graffiti). She pleaded guilty with the matter proceeding to sentencing. The defence submitted that JYL was an artist from overseas and

Key words: Intentionally mark premises or property without prescribed consent, Section 4 Graffiti Control Act 2008 – plea of guilty – presence of several mitigating factors – non-conviction order, charges dismissed, Section 10 Crimes (Sentencing Procedure) Act 1999

Trespass

HW – Trespass charges dismissed without conviction

HW was charged with trespass after he had walked into a Security Restricted Zone at the airport. We represented HW in his sentencing hearing. The magistrate took into account HW’s character, age and limited criminal history when deciding to dismiss the charges without conviction.

Key words: Australian Federal Police – Trespass – Airport  security – dismissal – no conviction recorded, section 19B Crimes Act 1914 (Cth)

Contact O’Brien Criminal and Civil Solicitors on  (02) 9261 4281 for expert advice on your criminal matter.