In NSW, it is a crime to receive, dispose of, or attempt to dispose of any property that has been stolen. In an effort by the Courts to minimise the market for stolen goods and so reduce stealing, receiving stolen property carries greater penalties than larceny does.
As such, if you are charged with receiving stolen property it is important to understand the parameters of the offence and contact an experienced criminal lawyer immediately who will advise upon your options.
Receiving Stolen Goods is a criminal offence outlined in s188 and 189 of the Crimes Act 1900 (NSW). S188 outlines the offences of ‘Receiving Stolen Property’ where the stealing amounts to a serious indictable offence:
Whosoever receives, or disposes of, or attempts to dispose of, any property, the stealing whereof amounts to a serious indictable offence, knowing the same to have been stolen, shall be guilty of a serious indictable offence, and may be indicted, either as an accessory after the fact, or for a substantive offence, and may be indicted, either as an accessory after the fact, or for a substantive offence, and in the latter case whether the principal offender has been previously tried or not, or is amenable to justice or not.
A serious indictable offence is an offence punishable by imprisonment for life or for a term of 5 years or more.
Section 189 of the Crimes Act 1900 contains the offence of ‘Receiving etc Where Principal Guilty of Minor Indictable Offence.’ The elements of this offence are the same as those in s189, except that the stealing is a minor indictable offence. A minor indictable offence means an indictable offence (an offence that may be prosecuted on indictment) that is not a serious indictable offence.
For the purposes of these sections, ‘Stealing’ includes the taking, extorting, obtaining, embezzling, or otherwise disposing of the property in question. ‘Receiving’ entails possession and indicates an intention to exercise custody and exclusively control.
If you are aware that the goods you are buying are stolen, this will amount to an offence under either s188 or 189 of the Crimes Act 1900 (depending upon whether they were stolen in a way that was a serious indictable offence or a minor indictable offence, respectively).
If the value of the stolen goods does not exceed $5000, this is considered an offence under Table 1 of the Criminal Procedure Act 1986 which means that it will be dealt with summarily in the Local Court unless the prosecutor or the person charged elects otherwise.
If the value of the stolen goods does not exceed $5000 it is a Table 2 offence and will be dealt with summarily in the Local Court unless the prosecutor alone elects otherwise.
The maximum penalties for receiving stolen goods are more severe than those for stealing. This recognises that without the receiver there would be no market for the thief, and by imposing stricter sentences the Courts seek to discourage the receiver and subsequently reduce the market for stolen goods.
‘Goods in Custody’ refers to the offence found in Crimes Act 1900 s527C of ‘Persons Unlawfully in Possession of Property’. This section dictates that:
Any person who has any thing in his or her custody, has any thing in the custody of another person, has any thing in or on premises, whether belonging to or occupied by himself or herself or not, or whether that thing is there for his or her own use or the use of another, or gives custody of any thing to a person who is not lawfully entitled to possession of the thing, which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, is liable on conviction before the Local Court.
The key difference between the two offences lies in the mental state of the accused that must be proven. While the offence of receiving stolen property requires the prosecution to prove that the accused knew the property was stolen, goods in custody only requires the prosecution to demonstrate that a reasonable person would have suspected it was stolen.
Receiving stolen property also goes further in that it encompasses the actions of both receiving and disposing, while goods in custody merely concerns suspicious possession.
Correspondingly, the penalties for goods in custody are the lower of the two offences. The maximum penalty is imprisonment for 1 year and/or a $1,100 fine if the property is a motor vehicle or part, and 6 months imprisonment and/or a $550 fine in the case of any other thing.
The relevant fines for receiving stolen property are found in the Criminal Procedure Act 1986. As a Table 1 offence, the maximum fine the Local Court may impose for receiving stolen property of a value that exceeds $5,000 is 100 penalty units (currently $110,000).
For receiving stolen property of a value that does not exceed $5,000, a Table 2 offence, the maximum fine the Local Court may impose is 50 penalty units (currently $5,500). If the value of the property does not exceed $2,000, then the maximum fine becomes 20 penalty units ($2,200).
If heard in the Local Court, receiving stolen goods may be punished with a prison sentence of up to 2 years. If the prosecution or the accused, depending upon the nature of the offence, elect for it to be heard on indictment before the District Court, the potential penalties are set out in the Crimes Act 1900.
For an offence under s 188, where the theft amounts to a serious indictable offence, the maximum penalty is imprisonment for 12 years if the property is a motor vehicle, a motor vehicle part, a vessel, or a vessel part. Here ‘vessel’ means a watercraft of any description used or capable of being used as a means of transportation of water in accordance with the Marine Safety Act 1988 (NSW). In the case of any other property, the maximum penalty is imprisonment for 10 years.
Under s189, where the theft amounts to a minor indictable offence, the maximum penalty is imprisonment for 3 years.
If you are found or plead guilty for the offence of receiving stolen goods, this will appear on your criminal record. However, if appropriate, the Court may choose to deal with the matter by way of s10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) whereby no conviction will be recorded.
Under s10, the Court has the options of issuing you a non-conviction dismissal, a non-conviction discharge to participate in an intervention program, or a non-conviction discharge under a conditional release order.
If the police reasonably suspect you of receiving stolen property, you will be issued with a Court Attendance Notice and required to appear in Court. There you will need to decide whether to plead guilty or not guilty to the charge, and the matter will progress accordingly.
If you choose to plead not guilty, your matter will proceed to a hearing. This serves to ‘put the prosecution to proof’ and they must establish each of the elements of the offence, which are:
Depending upon whether you are charged under s 188 or s 189, a further element is whether the manner of theft amounted to a serious indictable offence or a minor indictable offence, respectively.
Mere suspicion is not sufficient to constitute knowledge or belief for the purpose of the offence. The prosecution must prove that you actually believed the property was stolen in the sense that you accepted the truth that it was.
If you agree with the charge against you, pleading guilty may secure the best outcome. The Court recognises this as a demonstration of remorse and contrition, and, if done at the earliest available opportunity, the utilitarian value of a guilty plea affords a 25% discount off any subsequent sentence.
As receiving stolen goods is a criminal offence, the prosecution bear the burden of proof and must prove each of the above elements beyond reasonable doubt
If you are being charged with a criminal offence in NSW, it is vital that you seek legal advice and legal representation. An experienced criminal defence lawyer will be able to advise you on how to proceed and assist you through every step of the process. Contact our expert Criminal Defence Lawyers now.
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