Criminal law
Goods in custody charges in NSW
This is the easiest dishonesty offence in the Act to prove, which is exactly why police charge it. They do not have to prove the property was stolen. They do not have to prove you stole it. They only have to prove you had it, and that it may reasonably be suspected of being stolen. The defence is a statutory one and the burden falls on you, which changes entirely what needs to be assembled and when.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Our lawyers include former prosecutors. We appear in Local Courts across New South Wales.
What has to be proved
The offence is properly called being unlawfully in possession of property. It has two elements and it covers four different situations.
The prosecution has to prove that you had the thing, and that the thing may reasonably be suspected of being stolen or otherwise unlawfully obtained. Having it covers:
- Property in your own custody, on you or with you
- Property in the custody of another person, held for you
- Property in or on premises you occupy, whether or not the premises are yours and whether or not the property is for your use
- Property you gave to someone who was not lawfully entitled to have it
The suspicion has to attach to the property, not to you. This is the point most of these arguments turn on. It is not enough that police found the item suspicious because of who was holding it, where they were, or what their record says. The question is whether the thing itself, in the circumstances, may reasonably be suspected of being stolen. Money can be the subject of the charge, and frequently is where cash is found alongside something else.
Penalties
| Property involved | Maximum penalty |
|---|---|
| A motor vehicle or vessel, or a part of one | 1 year and a $1,100 fine |
| Anything else | 6 months and a $550 fine |
These are among the lowest maximums in the Act, and the matter is always dealt with in the Local Court. Goods in custody is also a criminal infringement notice offence, so police have a discretion to issue an on the spot fine rather than charging at all. More on criminal infringement notices.
The penalty is not usually the concern. It is a dishonesty conviction, which affects employment, professional registration, licensing, visas and travel for years after a $550 fine has been forgotten.
The statutory defence
The provision contains its own defence, and it is the one that matters. It is a sufficient answer if you satisfy the court that you had no reasonable grounds for suspecting the thing was stolen or otherwise unlawfully obtained.
Two things follow. The burden is on you rather than the prosecution, which is unusual. And it is discharged on the balance of probabilities rather than beyond reasonable doubt, which is a lower standard than most people assume when they are told the onus has shifted.
What discharges it
- Where you bought it, from whom, and what you paid. A receipt, a bank transfer, an online listing or a message thread is worth more than any explanation given later
- Whether the price was consistent with the item’s value. A market price supports you. A fraction of it does not
- What you were told about where it came from, and whether that was plausible
- Whether the item bore anything that should have put you on notice, such as a removed serial number or a security tag still attached
- Whether you had it openly, used it normally, and made no attempt to conceal it
The single most useful thing you can do is preserve the record of how you obtained the item before it disappears. Marketplace listings are deleted, messages are cleared and sellers become uncontactable, and the evidence that would have answered the charge goes with them.
Receiving stolen property, and why the difference matters
Receiving is a different and far more serious offence. It requires the property in fact to have been stolen, and it requires proof that you knew or believed it was.
| Goods in custody | Receiving stolen property | |
|---|---|---|
| Property must actually be stolen | No | Yes |
| Knowledge must be proved | No | Yes |
| Who carries the burden | The defendant, on the statutory defence | The prosecution, beyond reasonable doubt |
| Maximum penalty | 6 months, or 1 year for a vehicle | 10 years, or 12 years for a motor vehicle or vessel |
Where police cannot establish knowledge, goods in custody is the fallback. Moving a matter from receiving to goods in custody takes the exposure from ten years to six months, and it is one of the most valuable arguments available in property matters. It is also worth knowing in the other direction: agreeing at interview that you thought the item was probably stolen converts a six month offence into a ten year one.
Other arguments
The property was not suspicious
The suspicion must attach to the thing itself. A common item, bought at a normal price, held openly, is not suspicious because of where it was found or who had it.
It was not in your custody
Property in a shared house, a shared car, or a common area. Custody has to be established, and presence in the same room is not custody.
It was lawfully obtained
If you can show the item was not stolen or unlawfully obtained at all, the charge fails. Provenance evidence is worth chasing early.
The search was unlawful
Police need a suspicion on reasonable grounds to search without a warrant. Where they did not have one, the evidence obtained may be excluded, and in these matters the item is the whole case.
Duress
You held the item under threat, or were made to keep it for someone else.
Mental health or cognitive impairment
Where relevant, the Local Court can deal with the matter by way of a treatment plan rather than a conviction. That requires evidence prepared beforehand.
Goods in custody is regularly laid alongside another charge, most often a drug charge where cash is found, or a break and enter where property is located afterwards. In both situations the goods in custody charge is frequently the weakest part of the prosecution case and the first thing worth attacking. More on drug charges. More on break and enter.
Sentencing options in NSW
Get advice before pleading guilty to anything. The court can impose any of the following, and a well-prepared sentencing is what produces the best available outcome.
Dismissal without conviction
No conviction recorded and no further penalty. The matter is finalised as you leave court.
Conditional release order
A bond, available with or without a conviction, supervised or unsupervised. The standard conditions are to commit no further offence and to appear if called on, and further conditions can include rehabilitation, abstinence, curfews and non-association or place restriction orders.
Conviction with no other penalty
A conviction is recorded but nothing further is imposed.
Fine
Can be imposed alone or with a bond, and is a conviction. Usually payable within 28 days, though the registry can extend the time or arrange a plan. Non-payment leads to enforcement, which can include licence and registration suspension.
Community correction order
More serious than a conditional release order, for up to three years, supervised or unsupervised, with conditions that can include community service, curfews, abstinence and rehabilitation.
Intensive correction order
A sentence of imprisonment served in the community under strict supervision. Rarely relevant at this level, but available on a receiving charge.
A word on written pleas of guilty. Police sometimes hand you a form allowing you to plead guilty in writing without attending. It looks convenient and it is usually a mistake, particularly here, because the statutory defence is one you have to actually run. Pleading by post gives up an argument you may well have won, and it forfeits the chance of a non-conviction outcome that a properly prepared appearance would attract.
Common questions
I bought it second hand. Is that a defence?
It is the beginning of one. The statutory defence is that you had no reasonable grounds for suspecting the item was stolen, and where you bought it, what you paid and what you were told all go directly to that. Gather the listing, the messages and the payment record now, because those disappear quickly.
Do police have to prove the item was actually stolen?
No, and that is what makes this charge so easy to lay. They only have to prove you had it and that it may reasonably be suspected of being stolen or unlawfully obtained. Establishing that the item was not in fact stolen will defeat the charge, but the prosecution does not have to establish that it was.
The property was in my house but it was not mine.
The offence covers property on premises you occupy, whether or not it is yours and whether or not it is for your use, so that alone does not answer it. What does is the statutory defence: whether you had reasonable grounds to suspect it was stolen. In a shared house, whose room it was in and what you knew about it matter a great deal.
The price was very cheap. Does that sink me?
It is the factor most often relied on against a defendant, but it is not decisive. Second hand markets are full of items sold well below value for ordinary reasons. What the seller told you, how the sale was conducted and whether anything else should have put you on notice all form part of the picture.
What is the difference between this and receiving stolen property?
Receiving requires the property actually to have been stolen and requires proof that you knew it. Goods in custody requires neither. The maximums are ten years and six months, so which one you face matters enormously, and police charge the easier one when knowledge cannot be established.
Police asked whether I thought it might be stolen.
That question is asked for a reason. Any concession that you suspected it converts a six month offence into a possible ten year one and undermines the statutory defence at the same time. You are not obliged to answer questions beyond providing your name and address.
Can I be dealt with without a conviction?
Yes. Given the low maximums, a dismissal without conviction or a conditional release order is a realistic outcome where the matter is properly prepared, particularly on a first offence. It is not automatic and it is much harder once a plea has gone in unprepared.
What should I bring to a first appointment?
The court attendance notice or infringement notice, the police fact sheet, and everything you have about how you obtained the item: the listing, the messages, the receipt, the bank record, the seller’s details. If you have none of it, come anyway.
The evidence that answers this charge disappears fast
Marketplace listings get deleted, messages get cleared and sellers become uncontactable. If you have been charged with goods in custody, the record of how you obtained the item is the case, and it is worth preserving today.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153. Courts we appear in.