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Goods in custody

In NSW it is an offence to be in possession of an item which is likely to have been stolen or ‘unlawfully obtained’. ‘Unlawfully obtained’ means taking or coming into possession of an item in a way which is contrary to law or the rights of another person. The offence is often referred to by police as ‘goods in custody’ or ‘goods in custody reasonably suspected of being stolen’. Sometimes, it is also referred to as ‘unlawful possession’.

A person can be charged with this offence if they have possession of an item and it is reasonable to assume that the item has been stolen or unlawfully obtained. Having possession of an item includes physically holding or having the item, giving the item to someone else to hold or mind temporarily or having the item in your place of residence. You can also be charged with the offence if it can be shown that you had possession of the item before selling or giving the item to someone else.

The maximum penalty for this offence is 6 months imprisonment or 5 penalty units. If the item is a motor vehicle the maximum penalty increases to 1 year imprisonment or 10 penalty units.

The Offence of Goods in Custody:

Under legislation, the offence of Goods in Custody is actually called ‘Persons unlawfully in possession of property’. It is contained in s 527C(1) of the Crimes Act 1900 (NSW) and states:

Any person who:

  • has any thing in his or her custody,
  • has any thing in the custody of another person,
  • has any thing in or on premises, whether belonging to or occupied by himself or herself or not, or whether that thing is there for his or her own use or the use of another, or
  • gives custody of any thing to a person who is not lawfully entitled to possession of the thing, which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, is liable on conviction before the Local Court:
    • if the thing is a motor vehicle or a motor vehicle part, or a vessel or a vessel part, to imprisonment for 1 year, or to a fine of 10 penalty units, or both, or
    • in the case of any other thing, to imprisonment for 6 months, or to a fine of 5 penalty units, or both.

What Actions Might Constitute Goods in Custody?

Examples of Goods in Custody include:

  • Being stopped by police and found to have two bottles of perfume in your handbag, with the security tags still on and being unable to furnish a receipt or proof of payment;
  • Paying a random person on the street $50 for a GPS device they are trying to sell;
  • Buying four brand new iPhone’s for $200 from a man who told you they “fell off the back of a truck”; and
  • Being stopped for shoplifting in Woolworths. When police search the rest of your shopping bags they discover that, while you have purchased some items, that you don’t have receipts and can’t prove payment for two books from the ABC store, a boys t-shirt from Kmart and a bottle of Johnnie Walker Blue Label from Dan Murphy’s.

What the Police Must Prove:

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. That so, establishing that the item was not stolen or unlawfully obtained will disprove the offence.

To convict you of Goods in Custody the prosecution must prove each of the following matters beyond reasonable doubt:

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.

Possible Defences for Goods in Custody:

The primary defence for a charge of Goods in Custody is proving that the goods were not in fact stolen or unlawfully obtained. If you satisfy the court of this, on the balance of probabilities, you will be acquitted of the charge.

The other common ways to defend this charge are:

  • To maintain your innocence if you did not commit the act;
  • 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
    • To raise necessity or duress as the reason for your conduct.

Which Court Will Hear Your Matter?

The offence is a Summary Offence and can only be finalised in the Local Court.

Types of penalties:

Jail: This is the most serious penalty and involves full time detention in a correctional facility. Read more.

Home Detention: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.

Intensive Corrections Order (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Suspended Sentence: As a result of amended legislation this penalty was repealed on 24 September 2018. This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Community Service Order (CSO): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Good Behaviour Bond: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.

Community Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.

Fines: When deciding the amount of a fine the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10A: A section 10A is a conviction, with no other penalty attached to it. Read more.

Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. Read more.

Section 10 avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.

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