Goods in Custody – Unlawfully in possession of property –  s 527 Crimes Act.

The maximum penalty for an offence under this section is

• imprisonment for 6 months, or a fine of 5 penalty units, or both; or
• imprisonment for 1 year, or to a fine of 10 penalty units, or both (where the item is a motor vehicle or motor vehicle part; or a vessel or a vessel part.)

Please note that these penalties are reserved for the most serious cases only.

This option is recommended only where you accept that you unlawfully:

• had any thing in your custody, or
• had any thing in the custody of another person, or
• had anything in or on premises (whether belonging to or occupied by that person), or whether that thing is there for personal use or for another, or
• gave another person custody of any thing that the person is not lawfully entitled to have in their possession. AND

the item may reasonably be suspected of being stolen or unlawfully obtained.

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?

• A non-conviction via a section 10 – asking the court for leniency
  • Leniency is where the court has found you guilty, but has exercised a discretion not to convict you. Therefore, you will avoid:
    • a fine or a penalty.
    • a conviction
• 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.

To prove this charge, the Prosecution must establish, beyond a reasonable doubt, that a reasonable suspicion was held that you unlawfully:

• had any thing in your custody, or
  • had any thing in the custody of another person, or
  • had anything in or on premises (whether belonging to or occupied by that person), or whether that thing is there for personal use or for another, or
  • gave another person custody of any thing that the person is not lawfully entitled to have in their possession.

If the Prosecution is successful in establishing this beyond a reasonable doubt, then you may argue that there are no reasonable grounds to suspect that items were unlawfully obtained.

EG. you did not suspect that the goods were stolen or unlawfully obtained.

Defences:

• The goods were not in your personal custody at the time of your arrest: R v English (1989) 44 A Crim R 273
  • A Filipetti argument may be used here. In law, this is where more than one person had access to an area where goods were located by police. It may therefore be difficult to prove who had ‘personal custody’ of an item.
  • Items were discovered after your arrest, and were therefore not in your personal custody at the time of your arrest. Kitchen v Cox (1996) 85 A Crim R 328
• There were no reasonable grounds for suspecting that the goods were not stolen.
  • “The effect of this statutory framework is thus that the state of  knowledge of the person charged … is irrelevant to the prosecution case; but if the court is satisfied beyond reasonable doubt … that those things may be reasonable suspected of being stolen or otherwise being unlawfully obtained, the person charged must, in order to escape conviction, discharge the lesser civil onus upon him of satisfying the court that he had no reasonable grounds for suspecting that they were stolen or unlawfully obtained…” R v Buckett (1995) 79 A Crim R 302 at [308]
• Maintaining that an item has not been stolen or unlawfully obtained.
  • Though police need not prove that that a defendant stole an item; a defendant may prove ownership or guardianship of an item. EG. A receipt.
  • This may be a claim of right to an item (a bonafide belief that there is legal entitlement to the property.)
• Duress:
  • Circumstances or the threats of another compelled you to act in the manner you had.
• Necessity:
  • Actions was necessary to prevent a greater harm from occurring.