Topic 7: Attempts

Proposed Course Outline

TOPIC Week
1. Criminal Procedure 1
2. Review of Principles 2
3. Criminal Responsibility and Defences 3-4
4. Strict and Absolute Liability 5
5. Drug Offences 6-7
6. Property Offences 8-9
7. Attempts 10
8. Complicity 11
Revision 12
Why Punish Attempts?

 To punish actions that have the potential to cause harm

 To punish a morally blameworthy state of mind
 To allow police to prevent harm before it occurs
When Should Attempts be Punished?

 Not enough to be merely preliminary – may still be

fantasising about it
 Mere intention is not criminal
 D’s acts must reach a stage where they really endanger the
community.
 Must be approaching the complete commission of the crime
What is an attempt? Consider
these examples
 1. A buys a knife, intending to kill V, but has a change
of mind;

 2. A buys a knife, and goes to V's home intending to

kill V, but V is not there and A decides not to pursue it;

 3. A goes to V's house to kill V but just as she is lining

up V in her gun-sights a passerby grabs her and
prevents the shooting.

 4. A lines up V in the gun sights and pulls the trigger

but unknown to him the gun is not loaded.
The Crimes Act statutory provisions set
out the current law of attempts

s.321S abolishes the common law on attempts, and replaces it with statutory
tests and penalties in the Crimes Act ss 321M to 321P

s.321M – makes attempting an indictable offence, a crime itself.

s.321N(1) – AR of an attempt
s.321N(2) – MR of an attempt
s.321N(3) – Factual impossibility is no defence to an attempt*
s.321P – Penalties for attempts
s.321S – The Common Law on attempts is abolished
* We will see this means that Legal Impossibility will be a defence.
Attempts: An Indictable
Offence
 ‘A person who attempts to commit an indictable offence is
guilty of the indictable offence of attempting to commit that
offence’ (Crimes Act s.321M).
 Common law attempt is abolished (s.321S)
Relevant Conduct: s.321N
1. A person is not guilty of attempting to commit an offence unless the
conduct of the person is—
a) more than merely preparatory to the commission of the offence; and
b) immediately and not remotely connected with the commission of the offence.
2. For a person to be guilty of attempting to commit an offence, the person
must—
a) intend that the offence the subject of the attempt be committed; and
b) Subject to subsection (2A), intend or believe that any fact or circumstance
the existence of which is an element of the offence will exist at the time the
offence is to take place.
Elements

1. The accused intended to commit an

indictable offence; and
2. The accused attempted to commit
that offence.
What Must D Have Intended?

 D must have intended to commit an indictable offence (the

‘principal offence’) (s.321M-N).
 Not an offence to attempt to commit a summary offence
 D must have intended to commit the principal offence (and not
some other offence) (s.321N(2)(a))
 Must have intended to perform the physical elements of the principal
offence
 Must have intended to bring about any necessary result
 Does not matter if it was a strict liability offence (Mohan)
What Does ‘Intention’ Mean?

 For result crimes, D must have acted with the purpose of

bringing about the attempted result (Mohan)
 Is different from motive
 Recklessness and negligence are also insufficient (Mohan).
Intention or Belief in Facts

 D must intend or believe that any fact or circumstance that

is an element of the offence will exist at the time the offence
is expected to take place (s.321N(2)(b)).
 Concerns facts or circumstances that are elements of the
principal offence (like possession of a drug of dependence
(‘possession’ is a circumstance).
Act of Attempt: s.321N(1)

 To have ‘attempted’ to commit the principal offence, D’s

conduct must have been:
 More than merely preparatory to the commission of the
offence; and
 Immediately and not remotely connected with the commission
of the offence.
Attempt or Mere Preparation?

 At a general level, an attempt is sometimes described as the beginning

of the commission of the crime (cf ‘mere preparation’)
 But when does conduct move beyond ‘mere preparation’?
 s.321N(1)(a)&(b) - AR of an attempt
A person is not guilty of attempting to commit an offence unless
the conduct of the person is:
a) more than merely preparatory to the commission of the offence;
and
b) immediately and not remotely connected with the commission of
the offence.

This is a question of fact and degree for the jury

Attempt here?

?- - - -- - -* - - - - - - - -* - - - - - - - - - * - - - - - - - *- - - - - - * - - - - - - *- - - - - - - - -!
had an idea prepared evil plan substantial progress last act did it!
321N (1)(a) more than mere 321N (1)(b)immediately and
preparation? not remotely
Some Tests
 The ‘last act test’: D performed all of the acts that he or she needed
to do in order to complete the offence (Eagleton)
 The ‘continuum’ test: D committed an overt act that formed part of
a series of acts which, if not interrupted, would have ended in the
commission of the offence (Linneker)
 The ‘unequivocal act’ test: In all the circumstances, D’s conduct
was unequivocally referable to an intention to complete the
principal offence (O’Connor)
 The ‘substantial step’ test: D’s acts went a substantial distance
towards the attainment of his or her goal (Stonehouse)
Victorian Approach

 No definitive test beyond the words of the statute has been

endorsed in Vic. Words of Crimes Act paramount. Cite
before common law cases.
 There is a continuum from preparation to attempt to
completed offence
 Whether an act is sufficient to qualify as an attempt is a
question of degree – it is for the jury to determine
 The tests can be a useful guide for determining whether D’s
conduct has moved beyond mere preparation, but are not
prescriptive and of themselves are not law in Victoria
 Every case will depend on its facts
Voluntary Desistance

 Does it matter if D voluntarily desisted?

 Not if he or she had proceeded beyond mere preparation, and
had committed a sufficiently proximate act (Page)
Is ‘voluntary desistance’ a defence?
R v Page
Facts: Two D’s break into shop. One keeps watch. The other is holdinglever
about to break open shop window when he hears sirens in the background as
police approach. D claims he “ voluntarily desisted” *, as he pulled the lever
out. Police arrest him.
Issue: Is there any difference bw failure, external intervention, and
desistance* … Should these be defences to an attempt?
Held: Irrelevant whether D 'desisted from sudden alarm, from a sense of
wrongdoing, from failure of resolution' or from mere change of mind. Under
the law of attempts, there comes a ‘point of no return’ and it does not
matter why you stop (whether it’s factual impossibility or voluntary desistance).
Voluntary desistance is not a defence per se, just factors that would show no
attempt (s.321N(1) not satisfied).
Impossible Attempts

 ‘A person may be guilty of attempting to commit an offence

despite the existence of facts of which he or she is unaware
which make the commission of the offence attempted
impossible’ (s.321N(3); Britten).
 ‘Factual impossibility’
 Differs from the UK
 But an attempt is not committed if D mistakenly believed he
or she was committing a crime. The crime attempted must
have been a real indictable offence, not an imagined crime
(Britten).
 ‘Legal impossibility’
 s.321N(3) – Factual impossibility is no defence to an attempt

A person may be guilty of attempting to commit an

offence despite the existence of facts of which he
or she is unaware which make the commission of the
offence attempted impossible.

 For example, a person who tries to pick pocket, only to discover the fact that
the pocket is empty… Is this attempted theft?
 Remember Darrington, where the accused was guilty of attempted murder
for trying to kill a corpse, the fact V was already dead, didn’t absolve him of
liability for an attempt, because D didn’t know that and intended to kill him.
 Impossibility defence? Britten v Alpogut
Facts: D charged with attempted importation of narcotics. Intended and believed he was
importing cannabis. Was actually importing a legal substance (procaine – an anaesthetic).
Guilty of the crime of attempted importation of drugs
Held: … Attempts are crimes because of the criminal intent of the actor… The
criminality comes from the conduct intended to be done. That conduct intended must
amount to an actual and not an imagined crime, but if it does, then it matters not that
the gun is in fact unloaded, or the police intervene, … or the pocket is empty, or the safe
is too strong, or the goods are not cannabis”

Murphy J "the emphasis lies on the criminal intent of the actor … the act itself may be
innocuous.”

NOTE: This is now within s.321N(1)(a)more than mere preparation and

(b) immediately and not
remotely connected…)
What if it is impossible to commit offence? What do we mean by

impossibility ?
1. Giving someone a dose of a white powder, believing it is a poison and
intending to kill, but where in fact the white powder was harmless.
Attempt
2. Giving someone poison, intending to kill, but mistakenly giving too small
a dose.
Attempt
3. Violently stabbing a pillow in a bed 50 times, believing it to be an enemy
and intending to kill.
Attempt
4. Pickpocket puts hand into pocket intending to steal the wallet, but the
pocket is empty.
Attempt
5. A man has sexual intercourse with another man, believing same sex
relations to be illegal (although it is not).
Not attempt
Case Study
Did V intend to obtain financial advantage by deception? What
were the elements of completed crime?
1. D obtained something;
2. The thing D obtained was a financial advantage;
3. D used deceit to obtain the financial advantage; and
4. D obtained the financial advantage dishonestly.
 Yes – he intended to deceive the computer into providing him
with the $10,000
 Probably no belief in legal claim of right
Case Study

 Then consider: Did V attempt to commit OFAD?

 Probably
 Had set up the transfer and tried to execute it
 But did not try entering SMS code – sufficiently proximate?
Does it fit s321N? – more than merely preparatory and not remotely
connected.
-Probably not voluntary desistance – too late after clicking transfer
 What is an attempt? To Recap…

 A buys a knife, intending to kill V, but has a change of mind;

 Not an attempt – no proximate act and desists in time
 A buys a knife, and goes to V's home intending to kill V, but V is not there
and A decides not to pursue it;
Attempt, proximity – more than merely preparatory…Effect of voluntary
desistance – attempt? (need more facts)
 A goes to V's house to kill V but just as she is lining up V in her gun-sights
a passerby grabs her and prevents the shooting.
 Attempt – more than merely preparatory, Linneker’s case (see WW11.11)
 A lines up V in the gun sights and pulls the trigger but unknown to him the
gun is not loaded.
 Technically Attempt - what is effect of the gun not being loaded? Factual
impossibility irrelevant.
?- - - -- - -* - - - - - - - -* - - - - - - - - - * - - - - - - - *- - - - - - * - - - - - - *- - - - - - - - -!
had an idea prepared evil plan substantial progress last act did it!
Penalties: Section 321P

 Where a penalty level is expressed, provides for a penalty one

step lower
 Murder: level 1. Attempted murder: level 2
 Exception: level 12 fines stay the same.
 If penalty is expressed in other terms, then can’t exceed 60%
of maximum
 If no fixed penalty, then level 6 prison.

 And remember with respect to Drug Offences (the provision

sets up both an attempt and the completed crime and thereby
sets the same level of imprisonment for both (at a statutory
level).
Next Up…

 Complicity
 Prepare
 RG topics
 For this unit
 Prior to class