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Issue

  • Whether Sam can be charged under criminal liability for causing physical harm or assault to Derek.
  • Whether Derek can be charged under criminal liability for committing fraud, larceny of trick, and asportation in the present case.

Rule

  • Crimes Act, 1900 (NSW)
  • Section 4A, Section 192 b, section 117 of the Crimes Act 1900, Section 35 sub-clause 2 of the Crimes Act 1900, Section 59, division 8 of the Crimes Act 1900 and Section 33 and 35 of the Crimes Act 1900.

Application

In light of the present facts and circumstances of the case, Derek is guilty of committing fraud towards Philip. Fraud can be referred to as a deception or dishonesty which is committed towards a person to gain monetary benefit. Fraud can also be caused to have a detriment towards the other person. According to the Crimes Act 1900, Section 192 b refers to the understanding of deception in the territory of NSW where intentions play an important role to determine deception regarding any case. To commit any fraudulent activity, it is important that an action must be either caused by a reckless manner or can either be intended in nature1. Apart from this, the Crimes Act 1900 covers under section 4b of the act, all the activity related to dishonesty. Dishonesty is determined by the court of law under section 4 B of the Crimes Act 1900 and by applying it to the ordinary standard2. According to the case of R v Loppata3, it is important to have a dishonest belief by the accused that the property which is taken away by him does not belong to the accused and someone has a claim upon it. Obtaining a financial advantage is a major criterion an element of fraud under the Crimes Act 19004. The accused must have obtained any financial advantage and head cause a financial disadvantage to the other party which can either be on a permanent or temporary basis.

According to the Crimes Act 1900 NSW, it has been contended by the court of law that the penalty for committing any problem activity towards any other person will make the accused liable for the criminal liability. Under such situation where the product is obtained by the court of law, and in present, up to 10 years will be granted to the accused. It is important to know that larceny and fraud are two offenses that are closely interconnected with each other. Property is inclusive of cash and larceny is a crime related to who was regarding and taking advantage of some other property. Larceny is an alternative verdict of fraud that may be imposed upon the accused according to the criminal law of NSW5. In the light of the present facts and circumstances of the case it can be constituted that Derek had committed an offense of larceny by trick under the common law. Larceny is an offense and activity under which the accused obtained the position of the personal property of any other individual upon which the accused does not has the title6. Apart from this, any accused that has been charged under the larceny by trick must have intentionally made any false or by the presented statement to the victim to take possession of the personal property.

According to the present circumstance and facts of the case, it is very clear that Derek had committed fraudulent activity upon Philip. The fact clearly states that it was Derek, who had interrupted Philip regarding the problems of the roof, he had noticed in the property of Philip. The fact clearly states that Derek had made the statement that the roof of Philip was in very bad shape and the same needs reconstruction which can be done by Derek at a relatively cheaper price then what would have normally cost. When Derek had started working on the roof, he left the work after 4 hours and do not come to make repairs to complete the same for over the next two weeks. The instance of Derek changing his phone number is evident in the fact that he does not have any intention to complete the work he has committed to Philip. Apart from this when Sam, who was the grandson of Philip, had checked the roof to verify the bad condition of the roof stated by Derek according to the facts.

However, it was found by Sam, that the roof did not need any repairs as stated by Derek, and was not in bad shape. The statement of Derek was false. The fact that he had not picked up the calls of Philip, not returning to work for 2 weeks, changing his phone number, and the fact when Sam and Philip, found Derek near the espresso cafe in the suburb, Derek tries to run away. All these facts state that Derek is guilty of committing fraud towards Philip according to the facts and circumstances of the case.

Apart from this, Derek can also be charged under larceny by trick, as Derek has asked Philip to pay him $2000 before starting the work and $2,000 after the completion of the work. It is clear from the fact that Philip had paid him $2000 at the time when Derek had started working on the roof. Derek left his work, making $2000 from Philip and had not returned for a considerable long period, and the fact that he had also so changed his number with the intention of not contacting Philip anymore. Larceny is an offense under common law for taking personal property of someone. The punishment for larceny has been provided under section 117 of the crimes act 1900. Any person who is charged with larceny is liable for an imprisonment of up to 5 years. In the present case, the personal property is the money which is $2,000, which was taken away by Derek without completing his committed work. Also, Derek had intentionally made the false statement regarding the bad condition of the roof, stating that it needs repair which was disregarded by the grandson of Philip. Therefore it can be said that Derek can be charged under broad and larceny by trick according to the facts of the present case.

Grounds of getting charged under larceny, Derek can also be charged under asportation of property, under which a property is taken away by the accused by the intention of not returning the same. The act committed by Derek involves both the elements of the crime which is Actus Rea and mensrea. Actus Reus is any activity done to commit an offense by converting the intentions into action which is there in the present facts of the case. However, mensrea is the intention of the person to harm or cheat the other persons7. Both elements are present according to the situation and facts of the case. According to the case of Morris, an accused had lifted some goods from the shells of one supermarket and had switched the price levels that are there on the goods. The price of goods stuck by the accused was comparatively cheaper than the actual price and therefore the court had considered the act of the accused as unlawful and had charged him with appropriation. Similarly in the present case, the property which was the money in this case was taken away by Derek who belongs to Philip. The conduct of Derek in this case was unlawful and therefore he can be charged under appropriation. Also according to Walli v Lane8, asportation may amount and constitute larceny under which property is taken away by the accused with and an ill intention which is the case in the present situation9.

In the light of the present facts and circumstances of the case, Sam who is the grandson of Philip will also be charged under criminal liability for causing assault and bodily harm to Derek in the present case. Section 59, division 8 of the Crimes Acts 1900, states that the assault occasioning actual bodily harm to any individual10. Any person who assaults any other individual and thereby occasionally tends to cause any bodily harm to that person will be liable for imprisonment for up to 5 years11. Apart from this section 33 of the crimes act 1900 division 6 talks about grievous bodily harm with intent. The provisions of the section state that any person who wounds any individual and causes grievous bodily harm to that person with an intention will be guilty of causing wounding or grievous bodily harm to the other party12. Under such a situation of person will be liable under section 33 of the act and will be e charged under this act.

The maximum penalty which can be imposed on the accused extends to 25 years of imprisonment. Section 35 sub-clause 2 of the crimes act 1900 talk about reckless grievous bodily harm or wounding which is caused by any person to any individual which had caused previously bodily harm my recklessly committing any activity will be guilty of imprisonment for up to 10 years. In the light of the present facts and circumstance of the case, Sam can be charged under all the three sections provided under the crimes act 1900 NSW. Section 59 talks about the assault, and it is clear from the present facts and circumstances of the case that Sam has kicked Derek three times in his ribs even after knowing the fact that Sam was a black belt in jujitsu and was also show a rugby player in the first grade for the Macquarie scorpions.

Sam was aware of the fact that is physical strength is very good and his punch can enjoy the other person to a great extent. The fact also suggests that it was not once but three times simultaneously, when Derek was kicked by Sam. Also according to section 33 and 35 of the Crimes Act 1900, Sam had caused grievously body harm to Derek. To cause grievous body harm, the intention is very important and it can be referred from the fact that when Sam had called Derek, he said that once Sam got hold of Derek, he will break his neck. Therefore it can be said that the aggression of Derek for committing fraud to his grandfather had made him intend to cause hurt or bodily harm to Derek.

Also according to the common law principle, both the Actus Reus and mensrea were present on the part of Sam. Mensrea is an evil intention which triggers the wrongful act by one party13. The statement of Sam, threatening Derek to break his neck if you did not return the money to his grandfather was sufficient of the fact that he had intentions to cause harm Derek he did not return the money to Philip. A person must be sufficiently aware of the fact regarding what the person is doing and the consequence related to it. In light of the present facts and circumstances of the case, Sam was aware that kicking Derek three times in his ribs can cause him to suffer from a lot of injuries also by the fact that Sam is a black belt in jujitsu. A physical element which is Actus Rea is also present with the mental element as Sam had physically harmed Derek. There was no case of innocence on the part of Sam engaging in the physical assault towards Derek.

Sam can be convicted under section 4A which constitutes recklessness according to the Crimes Act 1900. The provision of reckless behavior is considered upon the degree of force lightness required to ascertain the possibility than the probability of an act14. The intention of reckless activity must be associated with the mental state of malicious intentions of causing bodily harm. In the case of Venna, it was contented by the accused that he did not have the intention of causes bodily harm to the police officer and he had merely kicked the officer to get off from the ground. However, the court of law had opined that the accused had for seed the possibility of the unlawful activity on his part and therefore it can be said that the accused had malicious intentions for causing assault. The same facts can be applied in the present case and therefore on such grounds Sam can be made liable for assault.

Also in the light of the present case, Sam Darbey v DPP, it is important that the accused must be present the physical element and has assaulted any person by threat of causing harm or intentionally or recklessly putting the other person into fear of unlawful personal violence. According to this ground, it is clear from the facts of the case that, Sam Derek threatened him to break his neck. This statement is sufficient to cause the threat of force to any person. In the present case, Actus Reus included for assault by threat of force as the mental state of Sam had turned out in a form of formation of the actions which were also accompanied by threatening words at a phone call. According to common law, taking any person over a phone call is also sufficient to hold a person liable for an assault by the use or threat of force.

In the case of Fagan v Commissioner of Police for the metropolis15, it was held by the court that animation cannot be a ground to establish an assault because assault is an altogether and independent crime and both the actus Reus and mensrea must be present to constitute16. The facts of the case suggest that Sam can be held for constituting assault to Derek on the grounds of the present case.

Conclusion

Therefore, by keeping in consideration all the precedent case laws and rulings of various acts and legislation of Australia, it can be concluded that Derek can we charge under larceny, asportation or appropriation without consent and apart from this he will be charged under committing fraud to Philip according to the facts and rulings of various cases as discussed. So far criminal liability of Sam concerned, he will be charged under causing assault, previous model ham, and application of the force of threatening application of force to Derek according to the present facts and circumstances of the case. Hence in the lights of the grounds of activity and omission conducted by both Derek and Sam, it can be concluded that both of them will be charged under different kinds of criminal liability under the court of law.

It has been mentioned that the golden rule associated with the omission of crime is in the presence of the mental element which must formulate a specific intention17. The court had contended to the fact that the intern must include the mental state for the foresight of the consequence. Similarly, according to the present facts and circumstances of the case, Sam can easily foresee the consequence of kicking Derek for three times in his ribs. Therefore after taking the precedent of this case, can be said that Sam guilty of causing grievous bodily harm to Derek as his physical activity or omission is associated with the mental state as clearly stated under the facts when he had called Derek threatened him for his life.

References for Legal Analysis

Acts/Legislations

Section 33 and 35 of the Crimes Act 1900

Section 4A, Section 192 b

Section 117 of the Crimes Act 1900,

Section 35 sub-clause 2 of the Crimes Act 1900

Section 59, division 8 of the Crimes Acts 1900

Cases

Zaburoni v The Queen (2016) 256 CLR 482

Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439

Collins v Wilcock [1984] 3 All ER 374

Foster v The Queen (1967) 118 CLR 117;

R v Ireland [1998] AC 147

Zanker v Vartzokas (1988) 34 A Crim R 11

R v Cockburn [1968] 1 All ER 466

Wallis v Lane [1964] VR 293

Kolosque v Miyazaki (1995) NSWS

R v Pear [1730] EngR 164

R v Justelius [1973] 1 NSWLR 471

Peters v The Queen (1998) 192 CLR 493

R v Fuge (2001) 123 A Crim R 310

R v Lopatta (1983) 35 SASR 101

Remember, at the center of any academic work, lies clarity and evidence. Should you need further assistance, do look up to our Law Assignment Help

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