Section 132.1 Criminal Code Act | Receiving


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The Legislation

Section 132.1 of the Criminal Code Act 1995 (Cth) is Receiving and is extracted below.

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132.1  Receiving

(1)  A person is guilty of an offence if the person dishonestly receives stolen property, knowing or believing the property to be stolen.

Penalty:  Imprisonment for 10 years.

(2)  For the purposes of this Code, an offence against subsection (1) is to be known as the offence of receiving.

(2A)  In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew or believed that the property belonged to a Commonwealth entity.

Stolen property

(3)  For the purposes of this section, property is stolen property if, and only if:

(a)  it is original stolen property (as defined by subsection (5)); or

(aa)  it is previously received property (as defined by subsection (5A)); or

(b)  it is tainted property (as defined by subsection (7)).

This subsection has effect subject to subsections (4) and (6).

(4)  For the purposes of this section, stolen property does not include land obtained in the course of an offence against section 134.1.

Original stolen property

(5)  For the purposes of this section, original stolen property is:

(a)  property, or a part of property, that:

(i)  was appropriated in the course of theft (whether or not the property, or the part of the property, is in the state it was in when it was so appropriated); and

(ii)  is in the possession or custody of the person who so appropriated the property; or

(b)  property, or a part of property, that:

(i)  was obtained in the course of an offence against section 134.1 (whether or not the property, or the part of the property, is in the state it was in when it was so obtained); and

(ii)  is in the possession or custody of the person who so obtained the property or the person for whom the property was so obtained.

Previously received property

(5A)  For the purposes of this section, previously received property is property that:

(a)  was received in the course of an offence against subsection (1); and

(b)  is in the possession or custody of the person who received the property in the course of that offence.

(6)  For the purposes of this section, property ceases to be original stolen property or previously received property:

(a)  after the property is restored:

(i)  to the person from whom it was appropriated or obtained; or

(ii)  to other lawful possession or custody; or

(b)  after:

(i)  the person from whom the property was appropriated or obtained ceases to have any right to restitution in respect of the property; or

(ii)  a person claiming through the person from whom the property was appropriated or obtained ceases to have any right to restitution in respect of the property.

Tainted property

(7)  For the purposes of this section, tainted property is property that:

(a)  is (in whole or in part) the proceeds of sale of, or property exchanged for:

(i)  original stolen property; or

(ii)  previously received property; and

(b)  if subparagraph (a)(i) applies—is in the possession or custody of:

(i)  if the original stolen property was appropriated in the course of theft—the person who so appropriated the original stolen property; or

(ii)  if the original stolen property was obtained in the course of an offence against section 134.1—the person who so obtained the property or the person for whom the property was so obtained; and

(c)  if subparagraph (a)(ii) applies—is in the possession or custody of the person who received the previously received property in the course of an offence against subsection (1).

Money transfers

(8)  For the purposes of this section, if, as a result of the application of subsection 134.1(9) or (10), an amount credited to an account held by a person is property obtained in the course of an offence against section 134.1:

(a)  while the whole or any part of the amount remains credited to the account, the property is taken to be in the possession of the person; and

(b)  if the person fails to take such steps as are reasonable in the circumstances to secure that the credit is cancelled—the person is taken to have received the property; and

(c)  subsection (6) of this section does not apply to the property.

Note:          Subsections 134.1(9) and (10) deal with money transfers.

Alternative verdicts

(9)  If, in a prosecution for an offence of theft or an offence against section 134.1, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence of receiving, the trier of fact may find the defendant not guilty of the offence of theft or the section 134.1 offence but guilty of the offence of receiving, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

(10)  If, in a prosecution for an offence of receiving, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence of theft or an offence against section 134.1, the trier of fact may find the defendant not guilty of the offence of receiving but guilty of the offence of theft or the section 134.1 offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Receiving property stolen before commencement

(11)  For the purposes of this section:

(a)  it is to be assumed that sections 131.1 and 134.1 had been in force at all times before the commencement of this section; and

(b)  property that was appropriated or obtained at a time before the commencement of this section does not become original stolen property unless the property was appropriated or obtained in circumstances that (apart from paragraph (a)) amounted to an offence against a law of the Commonwealth in force at that time.

Obtaining

(12)  The definition of obtaining in section 130.1 does not apply to this section.

Note:          See subsection 134.1(3).

Definition

(13)  In this section:

account has the same meaning as in section 133.1.