Taking without owner's consent
The time for which a sentence is suspended should reflect the length of the sentence; up to 12 months might normally be appropriate for a suspended sentence of up to 6 months. iii) Where the court imposes two or more sentences to be served consecutively, the court may suspend the sentence where the aggregate of the terms is between 14 days and. Sentencing in England and Wales refers to a bench of magistrates or district judge in a magistrate's court or a judge in the Crown Court passing sentence on a person found guilty of a criminal datingusaforall.com deciding the sentence, the court will take into account a number of factors: the type of offence and how serious it is, the timing of any plea of guilty, the defendant's character and.
In England, Wales and Northern Ireland taking without owner's consent TWOCalso referred to as unauthorised taking of a motor vehicle UTMV  describes any unauthorised semtence of a car or other conveyance that does not constitute theft. A similar offence, known as taking and driving awayexists in Scotland.
In police slang usage, twoc became a verb, with twocking and twockers also spelled twoccing and twoccers used respectively to describe car theft and those who perpetrate it: these usages subsequently filtered into general British slang. Any unauthorised taking of a car is cqrry to cause distress and can cause significant inconvenience to the owner and his or her family, so this is an offence covering an everyday crime, yet one that often involves genuine emotions of personal invasion.
Nevertheless, it is a summary offence defined under section 12 1 of the Theft Act Adopting the standard section 1 definition of theft would require a dishonest appropriation of the conveyance with intent to permanently deprive the owner. There will therefore be little dooes in prosecuting as theft situations where the stolen car is later sold sometimes through a process of 'ringing' i.
But the twoccing situation usually describes joyriding where all that is intended is an unauthorised use for what sentence does affray carry how to play talking to the moon on guitar period of time.
Alternatively, it covers situations where a vehicle is taken for the purposes of another offence, e. This offence is an alternative verdict under section 12 4 which provides:. If on the trial of an indictment for theft the jury are not satisfied that the accused committed theft, but it is proved that the accused committed an offence under subsection 1the jury affry find him guilty of the offence under subsection 1.
There must be some positive movement of the vehicle. Simply rolling it forwards or backwards a few metres is not sufficient if someone parks their car so close to yours that senteence make it impossible to drive your vehicle, it is permissible to move their vehicle a few feet to extricate yours but, equally, it is not necessary that the engine be started.
Releasing the brake and allowing the vehicle to run down a hill would be sufficient, as would driving the vehicle for a short distance. The taking may also be a material unauthorised use. For example, if a person hires a car to drive from London to Birmingham, but actually drives it to Liverpool, that will be a sentencs.
The carrry need not have anyone in it at the time of affary taking; merely being a conveyance is sufficient. To be a conveyance, the vehicle must have been constructed or adapted to carry a driver and others, depending on the design whether by land, water or air so it includes a hovercraft.
Pedal cycles are excluded from section 12 1but are covered by section 12 5 with reduced penalties, except for one constructed or adapted only for use under the sfntence of a person not carried in or on it.
If the vehicle is taken with the owner's knowledge, the owner has consented. But apparent consent can be ignored if obtained by a deception, e. This overlaps with the section 15 offence of obtaining property or services by deception. Taking by force may be robbery when the defendant did not intend the victim to recover sentenxe vehicle at all or so seriously damaged it that such conduct amounts to a theft see section 6. If the evidence is insufficient for theft, affrqy alternative charges are aggravated vehicle taking or blackmail under section Note that section 12 7 protects the interests of people hiring or buying under a hire purchase agreement by deeming them to be the owner for the purposes of section The defendant must know that the vehicle has been taken without the owner's consent, and that the accused has either driven the vehicle or been a passenger.
This is a statutory version of the so-called claim how do you unlock hokage naruto right defence which represents an exception to the general rule that ignorantia juris non excusati.
Thus, section 12 6 allows a defence where the defendant believes that he has the lawful authority to do it or that he would have the owner's consent if the owner knew of his doing it and the circumstances of it. So, for example, if a vehicle was moved a short distance because it was causing an obstruction, those moving it might reasonably believe that they have lawful authority to remove the obstruction. Because section 12 is a summary only offence, there can be no attemptso anticipatory acts are an offence of vehicle interference contrary to section 9 of the Criminal Attempts Act The defendant must interfere with the vehicle or a trailer or anything in or on it.
Merely touching the vehicle would not be enough. There must be some positive effort made to enter or affect it, and an intention to take or steal it. The offence of aggravated vehicle-taking was created by the Aggravated Vehicle-Taking Actwhich amended the Theft Act to address the issue of what sentence does affray carry. It is committed if a person commits an offence under section 12 1 of the Theft Act in relation to a mechanically propelled vehicle and it is proved that at any time after the vehicle was unlawfully taken whether by that person or another and before it was recovered, the vehicle was driven, or death, injury or damage was caused, in one or more the circumstances listed in section 12A 2 :.
There are two offences: under section 12A 2 b where an accident results in the affrat of another wha year sentenceand the less serious version under the other three headings maximum two years sentence. The judge at first instance described the defendant as a menace, having driven in ways that could so easily have killed wholly innocent road users while disqualified, while released on licence having been convicted of other aggravated TWOC offences, and while "out of his head" on ecstasy.
He had a long track record of convictions. The judge imposed the maximum consecutive sentences for aggravated taking and driving while disqualified. According to R v March 2 Cr App R Scredit should be given for a guilty plea and Forbes felt a keen sense of injustice that he had been given the maximum sentence.
Accordingly, a reduction was made to 22 months' detention in a young offender crry. A similar offence known as taking and driving away exists in Scotland. It is an offence under section of the Road Traffic Act to take and drive away a motor vehicle without the consent of the owner or, knowing the vehicle has been taken, to drive it or be carried in it.
The what can i claim on my taxes in ontario is intended to be used where a motor vehicle is taken, driven away and later abandoned. Where the vehicle is abandoned in a place where it is unlikely to be found the common law offence of theft is the more appropriate charge. Where police trace the vehicle and it is still in the possession of the person who took the vehicle is would also be more appropriate to charge what sentence does affray carry person with theft.
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Mar 24, · The Attorney General concluded that such a showing would be inconsistent with § , which "does not limit unconcealed-carry licenses to individuals employed as private security officers." Id. at 6. All that the statute requires is that the applicant (1) meet the objective qualifications; (2) be of good moral character; (3) demonstrate. In England, Wales and Northern Ireland taking without owner's consent (TWOC), also referred to as unauthorised taking of a motor vehicle (UTMV) describes any unauthorised use of a car or other conveyance that does not constitute theft. A similar offence, known as taking and driving away, exists in Scotland.. In police slang usage, twoc became a verb, with twocking and twockers (also spelled. Section 21A does not purport to codify the law in the area of the aggravating and mitigating factors that can be taken into account at sentence: Porter v R  NSWCCA at . Section 21A(1)(c) — any other objective or subjective factors.
In determining the appropriate sentence for an offence, the court is to take into account the following matters:. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.
The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:.
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:. The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.
The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence. In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.
In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor. When it was originally enacted, s 21A did not separately list aggravating and mitigating factors. Section 21A does not purport to codify the law in the area of the aggravating and mitigating factors that can be taken into account at sentence: Porter v R  NSWCCA at .
The aggravating factors set out in s 21A 2 are intended to encompass both subjective and objective considerations, as that distinction has been developed at common law: R v McNaughton 66 NSWLR at .
Successfully applying s 21A 2 requires a great degree of care akin to surgery. These observations include:. Many sentencing judges are concentrating too much on s 21A as a separate and discrete part of the sentencing discretion rather than considering it, where necessary, because of some particular submission made to the court, or as a guide to ensuring that relevant matters are taken into account.
If the sentencing judge is taking into account a matter as an aggravating factor under s 21A 2 , which would not have been taken into account before the enactment of the section, there is a real risk that the section is being misapplied. A judge who goes through the aggravating factors in s 21A 2 at the end of sentencing remarks as a kind of checklist is likely to fall into error by either double counting aggravating factors or by taking into account matters that have no real application to the particular case before the court.
The risk of error increases if a judge feels obliged to go through those factors as a task that is independent from the general sentencing exercise of identifying objective and subjective features that are relevant to the sentencing discretion. If the Crown does not assert an aggravating feature is present under s 21A 2 , the judge should be cautious about independently attempting to identify such a feature, without receiving assistance from counsel during addresses.
Judges should make it clear in their sentencing remarks if the Crown does not assert that there is an aggravating feature present, so a failure to take into account an aggravating factor would be difficult to argue on a Crown appeal against adequacy of the sentence. Section 21A 2 has a limited role to play where there is a guideline judgment for a particular offence at 44 :. The guideline judgments are offence specific. The facts relevant to a determination of whether or not the guideline applies will generally merely be specific aspects of the aggravating and mitigating factors in s 21A.
There will be few, if any, aggravating or mitigating features to take into account once the specific offence-related matters have been considered. The Court of Criminal Appeal has developed specific approaches as to how s 21A should and should not be applied in a given case. They are designed to encourage transparency, ensure procedural fairness and avoid double counting. It is important that sentencing courts give careful consideration to the factors of aggravation in s 21A 2 to determine not only whether they are available as a matter of law but also whether they arise on the facts of the case: R v Holten  NSWCCA at .
See further Opportunity of addressing the court on issues at [ ]. It is not necessary for a sentencing judge to refer to each of the factors, both aggravating and mitigating, to which s 21A directs attention, but it is necessary to take them into account to the extent that they are relevant to the case before the court: R v Wickham  NSWCCA ; R v Lilley A Crim R at , .
This involves addressing the s 21A matters by reference to the circumstances of the actual offence: R v King A Crim R at —. More than mere lip service to s 21A is required. In R v Dougan A Crim R at , the judge erred by failing to make clear precisely how the aggravating factor of threatened use of violence s 21A 2 b was taken into account in sentencing for the armed robbery offence.
The need for an explanation is not limited to situations where a judge may double count aggravating features, where a feature is an element of an offence and an aggravating factor under s 21A 2.
The court should be careful to make clear in its remarks whether it rejects or accepts matters of aggravation in s 21A 2 relied on by the Crown. It was said in R v Wilson 62 NSWLR at  that if a judge does not expressly reject matters raised by the Crown, it will be taken on appeal that the judge accepted them. On the other hand, if a judge makes only a general reference to s 21A it may however indicate no more than that he or she had considered the whole list of aggravating and mitigating factors but had given weight to those identified in his remarks on sentence: DBW v R at .
Where there are multiple offences, s 21A must be applied to individual offences and not in a general or global way. A general or overall reference to which aggravating factors apply may lead to error where some of the factors do not apply to all of the offences for which the offender is being sentenced: TS v R  NSWCCA at ; R v Tadrosse. Section 21A 2 was not intended to extend the categories of aggravating factors recognised by the common law at the time the section was created: Suleman v R  NSWCCA 70 at .
The court should always give attention to the words used to describe any aggravating factor, the policy rationale behind it and the fact that the Crown is to prove a matter of aggravation beyond reasonable doubt: Gore v R A Crim R at . In cases where the aggravating factor is an element of the offence or may be thought to be an inherent characteristic of offences of the kind for which sentence is being passed the judge should explain why the factor is present in the particular case before the court: Ward v R A Crim R at .
There are numerous cases to illustrate direct double counting. They are discussed in the Particular offences section, under the tab card of that name, beginning at [ ]. In R v Davis  NSWCCA , for example, the judge erroneously took into account the fact that the victim sustained actual bodily harm under s 21A 2 b when it was an element of the offence of taking and detaining in company with intent to obtain advantage and occasion actual bodily harm: s 86 3 Crimes Act.
In R v Way 60 NSWLR at — the court addressed the question of double counting the fact that the offence was committed in company. It was held that the fact that an offence was committed in company s 21A 2 e , where that is an element of the offence, cannot have an additional effect.
However, a court is entitled to have regard to the nature and extent of the company and the manner in which the presence and behaviour add to the menace of the occasion. These matters are relevant to the seriousness of the offence charged. Similarly, in Hamze v R  NSWCCA 36 at  it was held that it is permissible for a court to take into account the fact of the threatened use of violence as an element of the offence of robbery and then have regard to the nature of the threat of violence under s 21A 2 b in considering the seriousness of the offence.
Double counting occurs if the judge takes into account the fact of the threatened use of violence twice; that is, first as an element of the offence and then under s 21A 2 b see further discussion below. Suffice to state, it is only possible to achieve a correct result if clear findings are made by the sentencer.
An element of an offence should not be treated as aggravating factor if it merely reflects the policy underlying the offence: Elyard v R  NSWCCA 43 at —. The task involves identifying the purpose underlying the inclusion of an element of a particular offence against the matters listed in s 21A 2.
The court must consider any differences in the language used to describe the element of an offence and the description of the particular aggravating factor in question: Elyard v R at —. Where an offender has been convicted of an aggravated form of an offence it is not an error for the sentencing judge to consider other s 21A 2 aggravating factors that were not charged for example, breach of trust on the indictment under s 21A 2 : Ivimy v R  NSWCCA 25 at .
The court must find beyond reasonable doubt that the element exceeds that which would ordinarily be expected of the crime before taking it into account under s 21A: R v Yildiz A Crim R at .
For the application of this subsection to specific offences see: Drug offences and s 21A Crimes Sentencing Procedure Act at [ ] and Robbery at [ ] armed robbery. The sentencing judge erred by taking into account as an aggravating factor pursuant to s 21A 2 e that the indecent assault was committed in company. Section 61M 1 Crimes Act provides for a separate offence of greater seriousness, of which one of the available circumstances of aggravation is that the offence is committed in company.
The applicant was not charged with the more serious offence and the sentencing judge was required to limit his consideration of the surrounding circumstances so as not to punish the applicant as if he had committed the more serious offence.
The common law has long recognised that people in certain occupations work under a degree of risk. Since there is provision for a higher standard non-parole period for the murder of certain categories of persons see Table of Standard non-parole periods under s 54D Crimes Sentencing Procedure Act care needs to be taken to ensure there is no double counting of aggravating circumstances when consideration is being given to the sentencing of this class of persons.
For the application of this subsection to specific offences see: Break and enter offences at [ ]; Robbery at [ ] s 97 armed robbery ; [ ] s 98 robbery with wounding. Where the assailant has used his or her hands instead of a weapon it does not follow that the offence is necessarily less serious than if a weapon was used: Versluys v R at . This subsection is discussed extensively in Subjective matters taken into account at [ ].
This subsection was amended by the Crimes Sentencing Procedure Amendment Act , providing the additional text in parentheses. The definition includes serious sexual offences. It has no application to an offender who happens to use his wife to assist in his drug trade: Gore v R at .
The words are used to aggravate the gravity of the offence and the circumstance must be proved beyond reasonable doubt: White v R at . The decisions concerning the construction to be placed on the element of an offence being committed in company are relevant to the construction to be given to s 21A 2 e.
Each case will depend upon its own facts: White v R at . There was no error in finding the robbery was aggravated by its commission in company: IS v R at . In R v Way 60 NSWLR at —, the court held that the fact that an offence was committed in company, where that is an element of the offence, cannot have an additional or cumulative effect on sentence.
This, however, does not prevent the nature and extent of the company being taken into account when the court assesses the seriousness of the offence and the moral culpability of the offender. For the application of this subsection to specific offences see: Application of s 21A to break and enter offences at [ ]; Robbery at [ ] armed robbery and [ ] robbery with wounding ; and Common aggravating factors under s 21A and the common law at [ ].
It is not necessary that the offender is a parent of the child but if he or she is that will be an aggravating factor: Gore v R at . In McLaughlin v R  NSWCCA , the court held it was an error to find two domestic assault offences were aggravated under s 21A 2 ea where the judge made no finding that the child was actually present or witnessed the offences: McLaughlin v R at —.
Similarly, in Alesbhi v R  NSWCCA 30, there was no basis for the sentencing judge to conclude an offence of affray was aggravated by the presence of children when the affray occurred outside and there was no evidence the children witnessed the offence or knew what was happening: Alesbhi v R at —. This factor is directed towards offences committed in the sanctity of the home. The five-judge bench in Jonson v R held that decisions, such as R v Comert  NSWCCA , which stated that s 21A 2 eb is restricted to cases where the offender was an intruder were plainly wrong and should be overruled.
A literal construction therefore includes a home in which the offender is lawfully present, including one in which the offender resides with the victim: Jonson v R at . The fact the provision can extend beyond offences committed by an intruder does not mean that in all cases the fact the offence occurred in a home will be an aggravating factor.
The court must conclude, having regard to ordinary sentencing principles, that it actually aggravates the offence in question: Jonson v R at ; citing Gore v R A Crim R at . Jonson v R was applied in the five-judge bench decision of R v Lulham A Crim R at  where the court held that the judge was correct to find the offence was aggravated on account of the fact the victim was attacked in his own home, despite the fact the offender was not an intruder.
See further [ ] Application of s 21A to break and enter offences. Gratuitous cruelty suggests that the infliction of pain is an end in itself: McCullough v R A Crim R at .
Gratuitous cruelty under s 21A 2 f requires more than an offence being committed without justification and causing great pain. For offences that are by their nature violent, there needs to be something more than the offender merely having no justification for causing the victim pain: McCullough v R at .
For instance, the factor may be present in a case of malicious wounding if the nature and purpose of the wounding involved torture: McCullough v R at . A finding of gratuitous cruelty was made in R v King A Crim R at , where the offence of malicious wounding with intent included kicking a pregnant woman. Gratuitous cruelty was also established in R v Hoerler A Crim R at , , and , a manslaughter case which involved a prolonged and violent assault on a defenceless infant.
The latter act of cruelty was not related to the offence and there was no mention of the issue in the agreed facts.
For the application of this subsection to Child pornography see [ ]. The section must be understood through the prism of the common law. At common law, the court may have regard to the harm done to the victim by the commission of the crime: Signato v The Queen CLR at .
This is subject to the qualification that it cannot take into account harm that would effectively punish the offender for a more serious offence than the one charged: The Queen v De Simoni CLR at A court can only have regard to the consequences of an offence that were intended or could reasonably have been foreseen: Josefski v R A Crim R at , —. Neither provision was intended to alter the common law principles of sentencing: Muldrock v The Queen CLR at , . Therefore it is an error, as well as unfair, to take into account as an additional aggravating factor harm, under s 21A 2 g , harm that is not expected or could not have been reasonably foreseen to result from the commission of the crime: R v Wickham  NSWCCA at ; Josefski v R at , —.
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