R v Delk

[1999] NSWCCA 134

Reported Decision: 46 NSWLR 340
106 A Crim R 240

New South Wales

Court of Criminal Appeal

CITATION:	R v Delk [1999] NSWCCA 134
FILE NUMBER(S):	CCA 60707/98
HEARING DATE(S):	21 May 1999
JUDGMENT DATE:	21 May 1999
PARTIES :	Frederick Alvin Delk (Appellant) Regina (Respondent)
JUDGMENT OF:	Dunford J at 28; Greg James J at 31; Smart AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0454
LOWER COURT JUDICIAL OFFICER:	Kinchington DCJ

COUNSEL:	GP Craddock (Appellant) CK Maxwell QC (Respondent/Crown)
SOLICITORS:	TA Murphy (Appellant) CK Smith (Respondent/Crown)
CATCHWORDS:	CRIMINAL LAW - steal from the person - not actual person - presence sufficient.
ACTS CITED:	Crimes Act 1900, ss 94 & 95
CASES CITED:	Regina v Stewart and Ors [1929] SASR 500 Smith v Desmond [1965] AC 960 The Queen v Foster (1995) 78 ACR 517
DECISION:	Appeal dismissed, conviction confirmed.

IN THE COURT OF
CRIMINAL APPEAL

60707/98

DUNFORD J
GREG JAMES J
SMART AJ 21 MAY 1999

R v Frederick Alvin DELK
JUDGMENT

1 SMART AJ: Frederick Alvin Delk appeals against his conviction of a charge, tried by a judge alone, that he, Delk, on 20 February 1998, did steal certain property, to wit, one platinum and diamond wristwatch, one platinum and diamond brooch, and one platinum, diamond and sapphire bracelet, the property of John T. Hinkley Pty Limited, from the person of Geoffrey Kenneth Goldthorp, in circumstances of aggravation, namely, immediately after the stealing, maliciously, did inflict actual bodily harm on Geoffrey Kenneth Goldthorp. 2 On 19th February 1998 the appellant visited the company’s shop at 172 Castlereagh Street, Sydney, and spent about 30 minutes there looking at pieces of jewellery. The company sold expensive jewellery. The door to the shop is kept locked and potential customers are admitted only after a member of the staff causes the door to open. On 19 February 1998 the appellant and a saleswoman negotiated a sale price of $183,000 for the three pieces of jewellery. 3 About 11.15 am on 20 February 1998 the appellant entered the shop and asked Mr Goldthorp, a salesman, if he could look at the pieces of jewellery again. The appellant was seated on a stool on one side of a glass counter. Mr Goldthorp retrieved the pieces from the window and placed them on a tray on the counter in front of the appellant. Mr Goldthorp remained standing. The appellant asked Mr Goldthorp for the weight of the stones. Mr Goldthorp went to obtain a certificate with the details, temporarily placing the pieces out of the appellant's reach as he did so. On obtaining the certificate he placed the pieces on the counter in front of the appellant. There was a short conversation. 4 The appellant while still seated and with Mr Goldthorp opposite him, and close to him, lunged across the counter and with one arm grabbed the pieces and pulled them towards his body. At the same time he leant over the counter and with his other arm reached for the key to release the door. Mr Goldthorp moved to the appellant's side of the counter and grabbed the appellant by the throat. During the ensuing struggle the appellant punched Mr Goldthorp about the forehead causing a number of injuries which constituted actual bodily harm. The appellant escaped from the shop but he was pursued and apprehended. The jewellery was recovered from his person. 5 At the trial there was no issue that the appellant had stolen the company's jewellery and that immediately after the theft the appellant had maliciously inflicted actual bodily harm on Mr Goldthorp. The issue is whether the appellant had stolen the jewellery from the person of Mr Goldthorp. The appellant contended that the property had to be taken from the actual person of Mr Goldthorp and that it was not sufficient that it was taken from his immediate presence. The judge rejected the appellant's argument. 6 The appellant contended that the starting point should be s 95 of the Crimes Act 1900 which relevantly provides:

(1) Whosoever robs or assaults with intent to rob any person, or steals any chattel, money or valuable security from the person of another in circumstances of aggravation, shall be liable to penal servitude for twenty years.
(2) In this section, "circumstances of aggravation" means circumstances that (immediately before, or at the time of, or immediately after the robbery, assault or larceny) involve anyone or more of the following:

. . .

(b) the alleged offender maliciously inflicts actual bodily harm on any person

. . .

7 Section 94(1) which deals with robbery without circumstances of aggravation is in similar terms to section 95(1) except that it does not refer to circumstances of aggravation and the maximum penalty is penal servitude for fourteen years. 8 The appellant contends that the ordinary and natural meaning of the words, "steals from the person" is that the items stolen must be held by the person, for example, a handbag or in a person's pocket or clothes, for example, a wallet in a pocket, or be worn by a person, for example, a ring or a necklace or an earring. 9 These are but examples on the appellant's approach. On his approach, if Mr Goldthorp held the brooch in his hand and so showed it to the appellant and he seized the brooch and made off, that would be stealing from the person. However, if Mr Goldthorp placed it on the counter or in a tray on the counter and stood beside the counter and the appellant seized the brooch and made off, that would not be stealing from the person, but stealing. On this approach, the offence committed would depend on whether Mr Goldthorp was holding the brooch or had placed it on the counter. That seems a little artificial. What would be the situation, for example, if Mr Goldthorp had held the tray with the pieces of jewellery and the appellant had seized them off the tray? 10 The appellant submitted that it was erroneous to apply the law developed in relation to robbery to the offence of stealing from the person. He contended that that offence had a different genesis and was designed to strike at different conduct. Violence was not involved in stealing from the person. 11 The major Australian authority is that of the Full Court of South Australia in Regina v Stewart and Ors [1929] SASR 500. That court embarked upon an historical review of the law of robbery and steal from the person at pages 502 to 505. 12 After reviewing the Statutes of 8 Eliz C 4, 48 Geo III, C 129, 7 and 8 Geo IV C 29, 7 Guil IV and 1 Vict 1 (1837) (which was adopted in South Australia (Ord 5 Vic No 14) and 24 and 25 Vic C 96 and the South Australian Criminal Law Consolidation Act 1870 Napier J, at 505, on behalf of the Court continued:

" The plain effect of these Statutes, commencing with 48 Geo 111 C 129 is to deal with all larcenies from the person, whether committed openly or privily, and thus to close the gap between robbery and larceny from the person; later (in 1827) to deal with robbery and other larcenies from the person as one offence - i.e. for the purposes of punishment; and finally, to leave simple robbery and larceny from the person to stand in this way as one offence, while prescribing heavier punishment for aggravated forms of robbery. We see no reason why these words, "from the person" when used in these Statutes should not be expounded as the law had already expounded them for the purposes of the indictment for robbery, which had already been regarded as a form of larceny from the person aggravated by the circumstance of force or putting in fear... The evolution of the Statute law is opposed to any subtle distinction between the meaning of these words as they are used in the one context or the other."

13    The Court upheld the ruling at the trial that for the purpose of the statutory offence of stealing from the person a taking in the person's presence was sufficient. In that case a bank teller was sorting notes on the counter in front of him when the accused entered the bank. The teller placed the notes on a shelf under the counter in front of him. One of the thieves took them. There was the same close presence and guarding as in the present case. Stewart has stood unchallenged for many years. 14    In Smith v Desmond [1965] AC 960 the House of Lords reviewed the law of robbery. At 993 Lord Pearce pointed out that in 1827 all the old Statutes dealing with theft, robbery and related matters were swept away and that in 1837 a more orderly and coherent attempt was made to define the sentences and ingredients of various crimes. He explained that robbery was an aggravated form of theft, adding an offence against the person to the offence of stealing, since the theft is carried out by using violence to the person from whose possession the goods are stolen or by putting him in fear of violence. Lord Pearce said at 993 to 994,

"The simplest case of robbery is that where the property is stolen, by violence or putting in fear, from the actual person of the victim... Owing to the essentially personal nature of the crime, the indictment always used to allege that the goods were stolen 'a persona'.
Nevertheless, from early times the crime was constructively extended to cover cases where the goods were not actually stolen from the victim's person. The real nature of the crime, stealing by violence, was the same whether the goods were on the victim's person or in his presence."

15    I interpolate that the crime of stealing from the person involves a personal confrontation and the potential for personal conflict and force or fear, particularly if the victim endeavours to stop the theft. In such circumstances it matters not whether the property stolen is on the person of the victim or in his immediate presence. It is unnecessary in this case to elaborate on what satisfies the requirement of the person's immediate presence. It certainly embraces a case such as this where the victim is standing beside the property and guarding it.
16    At 996 Lord Pearce said:

"In Clements v State the Supreme Court of Georgia held that there was sufficient taking in the presence of a man whose house was rifled and cash stolen from it while he was confined by force in a shed 15 yards from the house. The learned judge there said that "all his property, so far as cases of this character are concerned, is, in contemplation of law, upon the person of the owner, which is, at the time of taking, in the immediate presence of the owner or is so near at hand, or stored in such a position, that at the time of taking, it is under the immediate personal protection of the owner." He quoted from Bishop on the Criminal Law, Vol. 2 paras 1177, 1178. The meaning of this legal phrase is not that the taking must necessarily be from the actual contact of the body, but if it is from under the personal protection that will suffice. Within that doctrine the person may be deemed to protect all things belonging to the individual, within a distance not easily defined, over which the influence of the personal presence extends."

I agree.

17    At 998 Lord Pearce remarked:

"But the offence can only exist where the victim has sufficient care or personal possession of the goods to allow the Court to say that constructively the goods were taken in his presence."

18    At 999 Lord Pearce stated that it was a question of degree for the jury to decide whether the victim of the violence was sufficiently the custodian of the stolen property, whether he had sufficient possession and care of it, to constitute the stealing as being in his presence. 19    The speech of Lord Morris also contains an illuminating historical review. At 979 he said:

"There is little doubt that the writings and decisions in regard to robbery reveal a continuous and progressive process of definition."

20    He traced that progression from early times when the offence of robbery was limited to cases where there was actual violence to a person and a forcible taking from the person to the present when actual violence is not necessary, and when it suffices if there is a putting in fear of violence by a threat of violence or by other means. He said,

"Furthermore, the taking may not have been literally a taking from the person. It could be a taking of goods, against the will, either from the person of another or in his presence."

21    I see no good reason why the offence of stealing from the person should not be similarly approached. The offence of stealing from the person fills what would otherwise be a gap in the law as it exists in New South Wales. The taking of goods from a person or from his immediate presence when he has sufficient possession and care of it invites a personal confrontation and steps in prevention which will often involve breaches of the peace in the struggle which ensues. 22    In the present case and, indeed, in Stewart, the taking was comparable to a taking from the person. The jewellery here in question was in the immediate and personal presence, care and protection of Mr Goldthorp and that suffices. 23    In the Queen v Foster (1995) 78 ACR 517 at 522 this Court followed Smith v Desmond and stated:

"The essence of a robbery is that violence is done or threatened to the person of the owner or custodian who stands between the offender and the property stolen, in order to overcome that person's resistance and so to oblige him to part with the property; in other words, the victim must be compelled by force or fear to submit to the theft: Smith v Desmond [1965] AC 960 at 985-987, 997-998; (1965) 49 Cr App R 246 at 260-263, 275-276. It is not sufficient that the threat of violence is made after the property has been taken; both elements of the offence must coincide: Emery (1975) 11 SASR 169 at 173."

24    It is important to pay particular attention to the history of the offence of steal from the person in New South Wales:

Act 46 Vic No 17 was stated to be an Act to consolidate and amend in certain respects the criminal law. Sections 90 and 91 provide:
"90. Whosoever robs or assaults with intent to rob any person or steals any chattel money or valuable security from the person of another shall unless where a greater punishment is provided by this Act be liable to penal servitude for ten years.
91. Whosoever commits any such felony as is mentioned in the last preceding section and immediately before or at the time of or immediately after the commission thereof strikes or uses any other corporal violence to any person shall be liable to penal servitude for fourteen years. And if the person so offending thereby wounds any person he shall be liable to penal servitude for life."

25    It will be seen that the offences of robbery, assault with intent to rob and steal from the person are dealt with together and the same maximum penalty is prescribed for each. These offences are seen as part of an overall scheme dealing with the graver thefts where there is violence or putting in fear or the potential for violence exist. The statutory scheme manifest in the 1883 Act was continued in the Crimes Act 1900 and is reflected in the current sections 94 and 95 of that Act. 26 It would be anomalous in such a statutory scheme, given the development of the concept of robbery, for the offence of steal from the person not to include a taking of goods in the possession, care, custodianship and immediate presence of the victim. 27 The English Larceny Act 1916 deals with stealing from the person separately from the offences of robbery and assault with intent to rob. The English Theft Act 1968 represents a major departure from previous statutory regimes. Caution must therefore be exercised when reference is made to the current English legislation. However, in New South Wales the history and the scheme of the legislation are clear. The judge was right. The appeal should be dismissed. 28    DUNFORD J: I agree with the judgment of Smart AJ and with his Honour's reasons, and only wish to add this. R v Stewart [1929] SASR 500, which appears to be the only Australian authority in point, and which is based on legislation and a legislative history similar to that of New South Wales has stood now for almost 70 years, and in my view should be followed. Not only do I consider its reasoning to be correct, but such reasoning is consistent with the reasoning of the House of Lords in Smith v Desmond [1965] AC 960, a case dealing with a different but closely related topic. 29 It is also relevant, apart from the history, to look at the position of this offence in the Crimes Act 1900 in the context of the structure of that Act. Robbery and aggravated forms thereof are dealt with in ss 94 to 98, and it is within those sections that the offence charged in the present case is to be found. On the other hand, larceny, and the various aggravated forms of larceny, are dealt with extensively in ss 116 to 154B. This indicates, even apart from the history of the offence, that stealing from the person should be regarded as a variant of robbery, rather than as a variant of larceny. 30 Robbery is generally defined as “stealing from the person with violence or threat of violence.” Stealing from the person in s 94, it seems to me, can be defined as “robbery without violence or threat of violence”, but both offences involve the concept of stealing from the person and, when looked at in the context of the legislation, it seems to me that the phrase "stealing from the person" must have the same meaning in both contexts, that is, taking something that is on the person of the victim or in his presence and control. 31 GREG JAMES J: I agree with what has been said by both of their Honours. I have nothing for my part to add. 32 DUNFORD J: The order of the Court will therefore be appeal dismissed, conviction confirmed.

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