A Guide on the Law and Penalties for “Goods in Custody” Offences in NSW

By Sahar Adatia and Jimmy Singh.

 

When we think about thieves, it’s not uncommon that our perceptions tend to be tinted by Hollywood depictions, much like the scheming heists of “Ocean’s Eleven” or “Now You See Me”.

However, the truth of the situation is usually a lot less glamorous.

According to a study of long-terms data on theft, published in the Journal of Economic Behaviour & Organization, it turns out the typical story of theft is one of bumbling teens, most of whom are active for only a short period of time and who make very little money in the process.

It also seems to be a stage that most adolescents eventually grow out of – or so we can hope.

Indeed, economist Geoffrey Fain Williams of Transylvania, who carried out the study, may have just been onto something when we consider the case of a teenager who last week made headlines once again after stealing money from a well-known busker in Sydney’s CBD.

 

18-Year-Old Man Steals Classical Guitarist’s Takings on Sydney’s Pitt Street Mall

On 13 July 2019, Martin Campos was playing his guitar for shoppers at Pitt Street Mall when a young man allegedly ran past and grabbed cash from his open guitar case.

Police allege the teenager, 18, swiped about $400 in notes from the 38-year-old classical guitarist as he carried out his performance, which occurred at about 5:45pm.

Mr Campos, who has been busking for several years and is well-known in Sydney’s CBD, chased down Mr Manias, eventually restraining him in the mall.

Members of the public also intervened, helping to capture the teenager from Hillsdale, before Sydney City officers arrived.

Pitt Street Mall is a popular precinct for buskers being located in a busy retail hub.

 

“Not the First Time”: Teenager Caught on Busker’s Livestream and Charged with Multiple Offences

Unfortunately for the young thief, the Chilean musician was livestreaming his performance on Facebook at the time and so was caught in the act.

Dramatic footage of the incident shows the moment the musician was forced to rapidly stop playing his guitar, jump off the stool he was sitting on and jolt forward to run after the offender.

In the vision, Mr Campos can be heard saying, “look at this … it’s not the first time he’s stolen (from) me.”

In the process of chasing down the thief, the musician damaged his $3,000 guitar.

“I threw my guitar at his legs and he fell to the floor and I caught [the alleged thief],” he said.

Mr Campos has been busking since arriving in Australia three years ago and said he was using the income to fund his studies in English language.

He said he felt sorry for the young man, however buskers worked very hard for their income, often performing for over 10 hours a day.

“Fortunately, we love what we do, but the problem is when you put all your life into something, to bring your music to the people, and some guy grabs your money – it’s really, really annoying,” the musician said.

The 18-year-old was arrested at the scene and taken to Day Street Police station where he told police he needed the money for food before telling them he found the cash on the road.

He was charged with Larceny and for  being in custody of suspected stolen goods.

 

Property Crime an “Exploratory Phase” for Most Offenders?

In the aforementioned study, Williams looked at data on self-reported thefts from the National Longitudinal Survet of Youth from Ohio State University, which followed more than 8,000 people between 1997 and 2011.

Amongst a series of questions, the survey asked people whether they stole anything in the past year, and if so, how much it cost.

Williams classified those who reported stealing at least one item worth more than $50 in the last year as “thieves”, while those who stole something worth less than $50 were referred to as “petty thieves.”

In the study, Williams found that theft isn’t that uncommon – overall, 16 percent of the people (one in five men and one in 10 women), reported having stolen something worth more than $50 in the last year.

When including the petty thieves, the numbers rose to one in three men and one in four women.

These statistics were self-reported, so they likely dismiss some people who chose not to report their theft.

The thieves included a disproportionate number of men, minorities and people with less education, along with people who drink, had mental health challenges, were smokers, and had lower standardised test scores.

Interestingly, in the research undertaken, Williams found that thieves tend to be active for only very brief periods of time.

On average, this was less than one year. Furthermore, over the 15 years of data, fewer than five percent of thieves continued their behaviour for more than three years.

Overall, the data seemed to suggest that a “thief” is less a type of person and more of a stage some that people go through at a certain point in their lives – specifically, adolescence.

“For the majority of offenders, property crime may simply be an exploratory phase,” Williams explains.

It also turns out that theft dropped off very sharply as people exited their teenage years.

A Guide on the Law and Penalties for “Goods in Custody” Offences in NSW

In NSW, “goods in custody” offences, which refer to being unlawfully in possession of property, make up some of the most common offences seen before the courts.

In short, these cases refer to situations where property is in your possession that is suspected of being stolen in a way which is contrary to the rights of another person.

The maximum penalty that a person who commits a goods in custody offence will face is up to 12-months imprisonment and/or $1,100 fine if the goods in question is a motor vehicle or part of a motor vehicle.

The maximum penalty for committing a goods in custody offence where the goods in question is something other than a motor vehicle or part thereof is 6-months imprisonment and/or $550.

This is reflected under section 527C Crimes Act 1900 (NSW). It is an offence otherwise known as a dishonesty offence, which is generally the easiest for police to prove than more serious offences of this nature.

Where a motor vehicle is given to a person not lawfully entitled to possess it, the police/prosecution are restricted as to when they can commence prosecution. The prosecution may then start prosecution if it is within two years from the date of the commission of the offence.

A person accused of committing this crime will be acquitted with the charged dismissed in court if he/she successfully argue the defence (on the balance of probabilities in court) that he/she had no reasonable ground for suspecting that the items in question was stolen or otherwise unlawfully obtained.

Another defence to the charge of goods in custody is where the ‘goods’ are found to be located in an area of a house or place where other people have free access to. An accused in such a situation will be acquitted of this charge if the prosecution fails to prove beyond reasonable doubt that the accused person had exclusive physical control of the item/good in question. This is known as the Filippetti defence from the case of Filippetti (1984) 13 A Crim R 335.

Another technical defence to the charge of goods in custody is if the accused person didn’t have the immediate de facto control or charge of the article in question in the way expressed in the case of Ex Parte McPherson (1993) 50 WN 25.

The defence expressed in McPherson’s case outlines that for an accused person to be guilty, one of the elements the police must prove beyond reasonable doubt is that, at the time of his/her arrest, the custody of the item or good in question must coincide and co-exist with the time of arrest.

In fact, the case of Cleary v Wilcocks (1946) 63 WN (NSW) 101 saw the charge of goods in custody dismissed by the court on the basis that the person who was accused wasn’t in possession of the alleged stolen watches ‘upon being charged’.

Other defences to this charge are if the prosecution is unable to prove beyond reasonable doubt that the thing in question may reasonably be suspected of being stolen or otherwise unlawfully obtained.

Here, the ‘reasonable suspicion’ is required to be attached to the goods, not the person.

This requires the Magistrate to consider whether, at the conclusion of the evidence during the hearing in court,  he/she is satisfied beyond reasonable doubt that it was proper to entertain a reasonable suspicion to the ‘goods’.

There is no requirement for the prosecution to prove what the specific or general offence relating to the ‘goods’ or item was.

To be guilty of the offence of goods in custody, the prosecution is required to prove the following elements beyond reasonable doubt in court:

  1. You either had a thing in your custody, or in the custody of another person, or you had a thing in or on premises, or you have custody of the thing to another person who isn’t lawfully entitled to possession of it; and
  2. There may be a reasonable suspicion that the thing is stolen or otherwise unlawfully obtained.

What is reasonable suspicion? The case of R v Rondo (2001) 126 A Crim R 562 outlines this and says, that a reasonable suspicion involves less than a reasonable belief but more than a possibility.

Put another way, a reasonable suspicion is where the mind of a reasonable person would have reason to suspect.

As mentioned above, the reasonable suspicion must be attached to the actual thing or goods in question, and it must be such a suspicion in the mind of the Magistrate at the conclusion of the evidence during the hearing in the Local Court.

Contact one of our Sydney or Parramatta criminal defence lawyers if you wish to discuss this topic further.

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