Good in custody (Unlawfull Possession)

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What is Good in custody (Unlawfull Possession) ?

Where a person/s is unlawfully in possession of property (For example they handle stolen goods knowing or believing them to be stolen than he/she has dishonestly received the goods (or dishonestly undertakes or assists in their retention, removal and disposal) or for the benefit of another person is guilty of having Goods in custody.

Case law/Jurisdiction

An offence of Goods in Custody is to be dealt with in the Local Court.

The nature and elements of the offence of Goods in Custody were considered in the case of Brebner v Seager  [1926] VLR 166 wherein it was held and the thing itself must be suspected of being stolen and not to be the proceeds of the stealing.

According to 527C of the Crimes Act 1900 (NSW) the offence of goods in custody is committed if a person has anything in their custody which may reasonably be suspected of being stolen or otherwise unlawfully obtained.

What must the prosecution prove?

Since unlawful possession (Goods in custody) is a criminal offence, the burden of proof lies on the Prosecution.

The prosecution must prove the Accused’s guilt beyond reasonable doubt.

That is a high standard of proof that the prosecution must achieve before someone can be convicted of Goods in custody.

The police do not need to prove that the item was actually stolen or unlawfully obtained, just that it is reasonable to suspect it was. As such, it does not matter whether the items were actually stolen or unlawfully obtained, just that the circumstances render it reasonable to suspect so.

To establish unlawful possession, the prosecution must prove each of the following matters beyond reasonable doubt:

Establishing that the item was stolen or unlawfully obtained. AND that you either;

  • Physically had an item on your person or in your possession;
  • Had possession of an item being held by another person;
  • Had an item at your place or residence;
  • Had an item in your possession that you gave or sold to another person; and
  • That item is reasonably suspected of being stolen or unlawfully obtained.

If you are charged with the offence of UNLAWFUL POSSESSIONGOODS IN CUSTODY what are your options?

National Criminal Lawyers have been successful in defending thousands of Goods in Custody charges where the prosecution could not establish each of the elements. We have also achieved a number of non-convictions for Unlawful possession charges.

NCL offer the following options for those who have been charged with unlawful possession:

  1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”);
  2. NCL will Plead Not Guilty and go to hearing/trial;
  3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing); and/or
  4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf seeking a non-conviction by the Court.

Pleading Guilty

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Maximum Penalties

Unlawful Possession can be punished with a prison sentence of up to 1 year if it relates to a Motor Vehicle or part of a Motor Vehicle or fine of $1100 or both;

Whereas in the case of any other thing Unlawful possession can be punished with a prison sentence for 6 months, or to a fine of $550 or both.

Pleading Not Guilty

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.
A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.
National Criminal Lawyers have defended thousands of people charged with unlawful possession and are experts at these hearings.

Defences

Some of the possible defences available for those charged with unlawful possession can include:

  • Proving that the goods were not in fact stolen or unlawfully obtained
  • To show that you had in fact lawfully obtained the item, for example by purchasing it or having a legitimate claim of right;
  • To argue that you:
  • were not physically in possession of an item;
  • had not given an item which you were in possession of to someone else temporarily;
  • did not have the item in your possession at your home; OR
  • did not have the item in your possession and that you did not give or sell it to someone else; or
  • If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”;
  • If your actions were necessary to prevent a greater harm from occurring, you may have the defence of “Necessity”;

Statistics

The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:

“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.

For unlawful possession 17% of offenders received a full-time prison sentence whereas 31% received a good behaviour bond and 39% received a fine.

5% of offenders received a Sections 10.

Possible Penalty's

In NSW, a court can impose any of the following penalties for a unlawful possession charge.

  • Prison sentence
  • Home Detention
  • Intensive correction order (previously periodic detention)
  • Suspended sentence
  • Community service order (CSO)
  • Good behaviour bond
  • Fine
  • Section 10

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

  • Full time Imprisonment
  • New ICO (ICO) with a home detention condition available
  • New Community Correction Order (CCO)
  • Fine
  • New Conditional release Order (CRO)

Case Studies

Our Senior Defence Lawyer appeared for an accused person who had been found with $3000.00 dollars and some Jewellery in his custody. He had found the money and items under a seat outside of cash converters and went to the cash converters store to try and find the owner. Being unable to find the owner he kept the cash and Jewellery in his home without spending any of the money or disposing of any of the jewellery. The client was an elderly leader in the South Sudanese community and according to his ethos and culture he was obliged to keep the found property with him for a period of time (40 days) then if the owner did not present to claim the property. After 40 days according to his culture the property coverts to the finder. The person who lost the money and items went to the police. The police went cash converters and cash converters showed the client on CCTV asking who owns the property. The client was identified. The police obtained the clients address and it was ascertained that the client still had the money and items. Instead of asking the client what his intentions were with the property and cash he was subjected to immediate arrest and charges with Goods suspected of being stolen or unlawfully obtained in custody. The client being elderly and of a different culture now found himself under arrest (for the first time in his life), moreover he was now very afraid and startled at what the police might do so he refused to undergo a police interview. This elderly man had no criminal record and given his background was fearful also of the authorities. After leaving the police station the client told Our Senior Lawyer everything about his case. Our Lawyers meticulously went about taking instructions, character references and Affidavits on the culture of this elderly man together with an explanation that the goods were in fact not unlawfully obtained. Suffice to say with all the evidence our expert lawyer wrote to the Officer in Charge enclosing the Affidavits and Character references and requesting the charges to be dropped. We specifically wrote that if the charges were not dropped and that if the matter proceeds and the client win’s the firm would be seeking all legal costs. After due consideration the charges were dropped.

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. We get the results

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. We give a Senior Defence Lawyer guarantee

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

If you have been charged with any driving offence our Team and National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.

Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

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