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7.5.3 - Armed Robbery

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Overview

  1. Armed robbery is an offence under the Crimes Act 1958 s75A.
  2. The offence has the following two elements:
    1. The accused committed robbery; and
    2. At that time the accused had a firearm, imitation firearm, offensive weapon, explosive or imitation explosive with him or her.

    The accused committed robbery

  3. The first element that the prosecution must prove is that the accused committed robbery (Crimes Act 1958 s75A(1)).
  4. The accused will have committed robbery if s/he:
    1. Stole something (i.e., committed "theft");
    2. Immediately before or at the time of the theft:
      1. Used force on any person; or
      2. Put any person in fear that s/he or another person would, then and there, be subject to the use of force; or
      3. Sought to put any person in fear that s/he or another person would, then and there, be subject to the use of force; and
    3. Did so in order to commit the theft (Crimes Act 1958 s75).
  5. See Robbery and Theft for further information concerning each of these requirements.

    The accused was armed

  6. The second element that the prosecution must prove is that, at the time s/he committed the robbery, the accused had one of the following five articles with him or her:
    1. A firearm;
    2. An imitation firearm;
    3. An offensive weapon;
    4. An explosive; or
    5. An imitation explosive (Crimes Act 1958 s75A).
  7. These articles have the meaning assigned to them in Crimes Act 1958 s77(1) (Crimes Act 1958 s75A(1)).

    Specified articles

    Firearms

  8. The term "firearm" is defined to have the same meaning as provided in section 3 of the Firearms Act 1996 (Crimes Act 1958 s77(1A)).
  9. That provision defines firearms broadly to include devices that are:
  10. It does not matter whether the device is assembled or disassembled, complete or incomplete, operable or inoperable (Firearms Act 1996 s3 "firearm").
  11. The definition of "firearm" excludes:

    Imitation firearms

  12. An "imitation firearm" is anything which has the appearance of being a firearm, whether or not it is capable of being discharged (Crimes Act 1958 s77(1A)).
  13. As the definition of "firearm" in section 3 of the Firearms Act 1996 extends to devices which "have the appearance of" a firearm, the definitions of "firearm" and "imitation firearm" overlap.

    Offensive weapons

  14. An "offensive weapon" is any article which:

    Articles made for causing injury or incapacitation

  15. An article is "made for use" in causing injury or incapacitation to a person if it is normally used only for that purpose (Wilson v Kuhl [1979] VR 315).
  16. Examples of this kind of article include knuckle dusters and sawn-off shotguns. Carving knives and walking sticks are not articles of this kind (Wilson v Kuhl [1979] VR 315).
  17. Articles that fall within this category will be offensive weapons regardless of how the accused intends to use them (Wilson v Kuhl [1979] VR 315).

    Articles adapted for the use of causing injury of incapacitation

  18. An otherwise inoffensive article is "adapted" for the use of causing injury or incapacitation if it is physically modified to transform it into a dangerous or threatening object (R v Nguyen [1997] 1 VR 551).
  19. A glass bottle may therefore become an offensive weapon if it is smashed to produce jagged edges (R v Nguyen [1997] 1 VR 551).
  20. An article will not be "adapted" into an "offensive weapon" merely by being handled or presented aggressively. It must undergo some kind of physical transformation (R v Nguyen [1997] 1 VR 551). [2]

    Articles the accused intends or threatens to use to cause injury or incapacitation

  21. An unmodified and otherwise inoffensive article may become an "offensive weapon" if it is carried (or kept available) by a person who intends or threatens to use it to injure or incapacitate (Crimes Act 1958 s77(1A); Wilson v Kuhl [1979] VR 315; R v Nguyen [1997] 1 VR 551).
  22. Kitchen knives, walking sticks and silk stockings carried with aggressive intent are examples of articles that fall into this category (Wilson v Kuhl [1979] VR 315; R v Nguyen [1997] 1 VR 551).
  23. An item as innocuous as a half-full plastic drink bottle, when wielded in a manner capable of causing injury, can also fall into this category (R v Nguyen [1997] 1 VR 551).
  24. It is not necessary to prove that the accused’s original intention in carrying the article was to use it offensively. It is sufficient if the prosecution can prove that the accused had that intention at the time of the robbery (R v Nguyen [1997] 1 VR 551).
  25. An accused’s threat to use an article to cause injury or incapacitation will not qualify the article as an offensive weapon if the victim knows the threat is fanciful (R v Nguyen [1997] 1 VR 551).

    Explosives and imitation explosives

  26. An "explosive" is any article that is:
  27. An "imitation explosive" is any article which might reasonably be taken to be, or to contain, an explosive (Crimes Act 1958 s77(1A)).

    The accused had the article "with" him or her

  28. For this element to be met, the accused must have had one of the specified articles "with" him or her at the time of the robbery (Crimes Act 1958 s75A).
  29. A person will have had the article "with" him or her if, at the time of the robbery, he or she had the article either on his or her person, or readily available for use (R v Hartwick (1985) 17 A Crim R 281).
  30. This element will only be met if the accused knew that he or she had the article with him or her, or available for use (R v Kolb & Adams 14/12/1979 CCA Vic; R v Cugullere [1961] 1 WLR 858).
  31. A person does not have an article "with" him or her if it is possessed in such a way that it cannot be used (e.g., if it is concealed on his or her person in a sealed package) (R v Kolb & Adams 14/12/1979 CCA Vic; R v Pawlicki [1992] 3 All ER 902).
  32. However, an instrument may be "used" by doing no more than drawing attention to its existence (R v Kolb & Adams 14/12/1979 CCA Vic).
  33. The ordinary principles of criminal complicity apply to this offence. This means that this element will be met if an accomplice, acting in concert with the accused, had the article "with" him or her (R v Hartwick (1985) 17 A Crim R 281). See Part 5: Complicity for further information about the principles of criminal complicity.

    Possession must be for the purpose of the robbery

  34. The expression "has with him" creates an implied requirement that the accused possessed the article for the purpose of the robbery (R v Reid 7/4/1998 CA Vic; R v Kolb & Adams 14/12/1979 CCA Vic).
  35. To establish that the accused possessed an article for the purpose of the robbery, the prosecution must prove that the accused intended to:
  36. The accused will have possessed an article for the purpose of the robbery if s/he intended to use it for that purpose, even if it was not actually used (R v Nguyen [1997] 1 VR 551).
  37. It is the accused’s purpose or intention at the time of the robbery that matters (rather than when s/he originally equipped him/herself with the article) (R v Nguyen [1997] 1 VR 551).

 

Notes

[1] While these articles will not be firearms, they may still be "offensive weapons" for the purposes of this offence.

[2] However, a mundane item that is handled aggressively may be an "offensive weapon" due to its intended or threatened use (see below).

Last updated: 24 January 2017

In This Section

7.5.3.1 - Charge: Armed Robbery (Short)

7.5.3.2 - Charge: Armed Robbery (Extended)

7.5.3.3 - Checklist: Armed Robbery

See Also

7.5 - Dishonesty and Property Offences

7.5.1 - Theft

7.5.2 - Robbery

7.5.4 - Burglary

7.5.5 - Aggravated Burglary

7.5.6 – Home Invasion

7.5.7 – Aggravated Home Invasion

7.5.8 – Carjacking

7.5.9 – Aggravated Carjacking

7.5.10 - Handling Stolen Goods

7.5.11 - Recent Possession

7.5.12 - Obtaining Property By Deception

7.5.13 - Obtaining a Financial Advantage By Deception

7.5.14 - Making or Using a False Document

7.5.15 - Blackmail

7.5.16 - Criminal Damage

7.5.17 - Criminal Damage Intending to Endanger Life

7.5.18 - Criminal Damage With a View to Gain

7.5.19 - Arson

7.5.20 - Arson Causing Death

7.5.21 - Intentionally or Recklessly Causing a Bushfire