What is demand property in company with menaces with intent to steal?
This is where a person unlawfully demands property from another person in a menacing way. The definition of menace has been considered in R v Butler [2012] ATSCC 124 at [33] as a being a threat
“of such nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand.”
The threat can be in relation to a person or their property. DPP v Kuo (1999) 49 NSWLR 226
it does not need to be an explicit threat. A court can be satisfied that a person’s conduct constitutes an implicit threat made through an inference. DPP v Curby [2000] NSWSC 745.
There is no need to prove that violence was used or injury was caused. It is not even necessary that the victim actually hands over their property to the person demanding it. It is sufficient that a person was threatened or intimidated.
The charge is not invalidated if the threat was made by a person accompanying the accused. Nor is the charge negated if it was not made in person. Any form of social media, or a text or even a letter, could constitute a charge of demand property with menaces with intent to steal. Austin v The Queen (1989) 166 CLR 669.
What is the maximum penalty for these offences?
- The maximum penalty for demanding property with menaces (or force), with intent to steal, is imprisonment for 10 years.
- Where the offence is committed ‘in company’ of another person, the penalty increases to imprisonment for 14 years
Please note that these penalties are reserved for the most serious cases only.
What are my options?
Plead guilty
This option is recommended only where you accept that:
- you demanded property from the victim;
- menaces or force accompanied the demand for property; and
- there was an intention to steal to the property.
A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.
What possible outcomes exist?
- Conditional release order “CRO” (with or without conviction)
- This is usually subject to a period of good behaviour.
- If an offence is committed during the period of the order, a court may resentence you for the offence committed.
- Statistics show that less than 2% of offenders receive this outcome.
- Community Corrections Orders (“CCO”)
- An offender is placed under the supervision of Community Corrections.
- Example of a CCO is performing service within the community, or being required to undertake mental health treatment.
- Intensive Corrections Order (“ICO”)
- This is where a term of imprisonment can be served in the community.
- Full-time imprisonment
- Served in a correctional facility.
Plead not guilty
To prove break and enter, the Prosecution must establish beyond a reasonable doubt that:
- you demanded property from the victim;
- menaces or force accompanied the demand for property; and
- there was an intention to steal to the property.
If the Prosecution cannot prove all of the above elements beyond reasonable doubt, then a finding of not guilty should be given.
Defences:
- Duress:, circumstances or the threats of another compelled you to act in the manner you had.
- Necessity: Your actions were necessary to prevent a greater harm from occurring.
- Mistaken identity: It was not you.
- A claim of right (see R v Bernhard [1938] 2 All ER 140)
- This is a bonafide belief that you had a claim of right or legal entitlement to the property.
- The belief must be that you are entitled to the entire property as opposed to segments of it.
- A menace had not accompanied the demand
- You had not formed an intention to take the property.
- This may be due to intoxication.
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