LARCENY OFFENCES NSW
LARCENY
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LARCENY – THE OFFENCE OF STEALING
Being charged with a larceny offences can be scary and at times the though of having a criminal conviction for a ‘fraud’ offence could have a devastating impact on your future career prospects. The courts take a very stern approach when it comes to dishonest offences. It is important to contact our team of criminal lawyers to assist if you are charged with a larceny offence.
LARCENY OFFENCES – SECTION 117 OF THE CRIMES ACT 1900
THE OFFENCE
The criminal offence of Larceny is found in Section 117 of the Crimes Act 1900 (NSW):
Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years.
WHAT IS A LARCENY?
Larceny is the offence of “theft” or “stealing”. It is the offence that relates to property being taken without the consent of the owner.
A ‘Larceny’ is not defined in the Crimes Act, however, it has been defined by the High Court of Australia in the well-known case of Ilich v R (1987) HCA 1:
A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof.
WHAT IS PUNISHMENT FOR LARCENY? WHAT IS THE MAXIMUM PENALTY?
The maximum penalty for Larceny is imprisonment for five years. However, this is capped at 2 years in the local court for a single charge of larceny.
Note: the maximum penalty is ordinarily reserved for the worst offenders.
The value of the theft varies the punishment.
The following maximum penalties apply:
- Value exceeding $5,000: Maximum penalty is limited to two years imprisonment and/or a fine of $11,000;
- Value does not exceed $5,000: Maximum penalty is 12 months imprisonment and/or a fine of $5,500;
- Value does not exceed $2,000: Maximum penalty is two years imprisonment and/or a fine of $2,200.
WHAT ARE THE POSSIBLE PENALTIES FOR A LARCENY OFFENCE?
The possible penalties for a larceny can vary. The possible outcomes include:
- Fines
- Conditional Release Order Bond with/without conviction
- Community Corrections Order Bond
- Intensive Corrections Order
- Full-Time Imprisonment
HOW DO I BEAT A LARCENY OFFENCES? WHAT DO THE PROSECUTION NEED TO PROVE?
To establish a larceny, the prosecution must prove the following ‘elements’:
- That you took and carried away property,
- That the property belonged to another,
- That you did not have the owner’s consent,
- That you intended to permanently deprive the owner of the property, and
- That your actions were dishonest.
If the police fail to prove any of the above elements, a person cannot be found guilty of Larceny.
PHYSICAL ELEMENTS:
- Took and carried away
In a case of Larceny, the Prosecution must prove, that a person took and carried away the property. The question is, “How far do they have to take it away?” The law states that, even the slightest movement can be enough to satisfy the elements of “took and carried away”, if all of the other essential elements are satisfied.
- Property capable of being stolen
There are a number of aspects to this element. The first question is, does the item fall within the relevant legal definition of “property”?
Section 4 of the Crimes Act 1900 (NSW) defines property as follows:
“every description of real and personal property; money, valuable securities, debts and legacies; and all deed and instruments relating to, or evidencing the title or right to any property, or giving a right to recover or receive any money or goods…”
If the item in question falls within the definition of property above, the Court is then required to also make the following findings in respect of that property:
- The property must have value. Even the slightest value will be sufficient for Larceny.
- The property must be movable. It is, for example, not possible to steal land or information, there are other criminal offences such as trespass which relate to property. However, items such as gas, electricity, documents of title to land and valuable securities are all capable of fulfilling an offence of Larceny.
If the item in question satisfies all of the above, then it is deemed to be property for the purposes of Larceny.
- The property belonged to another
A person cannot be guilty of Larceny if the property does not belong to another. Items such as wild animals, not belonging to an estate, cannot be stolen.
Similarly, abandoned property cannot be the subject of a charge of larceny. Abandonment occurs when the owner has intentionally given up any interest in the property.
For the purposes of Larceny, the element of “property belonging to another” is not strictly limited to ownership. Property can belong to another in the following circumstances:
- Single ownership: This is fairly self-explanatory.
- Joint ownership: Property can belong to more than one person. This is typically so in cases of marriages and other long-term relationships. The property within the marital home usually belongs to both parties.
- Larceny by finding: Property can also be stolen from an owner who has lost their property. This is known as “Larceny by finding”. For example, if a person finds a wallet and does not take steps to return the item or drop it off at a police station you may be found guilty.
- Possession: In some cases, although a person is not the owner of the property, if they have possession of property, that is enough to satisfy the element that the property belonged to another, in a case of Larceny.
- Control: An individual is in control when they have exclusive right of manual custody over the property. This is even so in cases where the person in control is not aware of the existence of the property.
- Without the consent of the owner
The property must have been taken without the consent or permission of the owner. Where an owner facilitates property to be taken away, this will not necessarily amount to consent.
MENTAL ELEMENTS
If all of the physical elements of Larceny have been satisfied, the Court then needs to consider whether the mental elements of Larceny have been satisfied. Mental elements of Larceny are as follows:
- With the intention of permanently depriving the owner
Larceny is not committed unless, at the time of taking, the person intends to deprive the owner of the property permanently.
- Without a claim of right
A person cannot be guilty of Larceny if they have an honest and genuine belief in a claim of legal right. That is, believing that the property belongs to them. This is different to a claim of moral right to the property. A claim of moral right is not a defence to a charge of Larceny.
An example of a case that our criminal lawyers successfully defended, where our client was travelling back from an airport on a crowded train with multiple bags. He mistakenly took the bag of another person. He was found not guilty at a defended hearing.
- Fraudulently
For there to be Larceny, the taking of the property has to be done “fraudulently” or “dishonestly.” Ultimately, if a person carries and takes away property and without a claim of right, it is most likely that the Court will find that the person acted fraudulently.
If all of the above elements are satisfied, beyond reasonable doubt, a Court will find the person guilty of Larceny.
DEFENCES FOR LARCENY?
- NO INTENTION: There must be an intent to permanently deprive the owner of the property. There, larceny is not committed unless, at the time of taking, the person intends to deprive the owner of the property permanently.
NOTE: If the accused takes the property without having decided whether to keep it or not, he does not commit Larceny. If he takes a property by accident, for example, walking out of a store with a drink in the pram while paying for other goods, they are not guilty.
- CLAIM OF RIGHT DEFENCE: The claim of right is a defence against Larceny. A person will have a claim of right where they possess a genuine belief that they have a bona fide (genuine) claim of right to certain money or property.
- DURESS DEFENCE: Where you have committed larceny because you were threatened to do so or forced to do so due to the threat of serious harm to you or a loved one, it was reasonable to do so given the circumstances, the defence of “duress” can be used.
WHAT FACTORS WILL THE MAGISTRATE/JUDGE TAKE INTO ACCOUNT ON SENTENCE FOR LARCENY?
OBJECTIVE FACTORS:
When determining the appropriate penalty, a Court needs to consider the objective seriousness of an offence. The objective seriousness is the determination of how serious a specific case of Larceny is, in comparison to other non-specific cases of Larceny. In making that determination, the Court must consider the following:
- The value of the property: The higher the value of the property the more serios crime (see above penalties)
- The type of property: The Courts usually differentiate items that are stolen out of need and items that are stolen out of materialistic desire. For example, bread being stolen would be different to the theft of a designed shirt.
- The planning and sophistication: The more sophisticated and planned the offending the more serious the offending. Opportunistic offending would be less objectively serious.
- Personal use vs profit: If the offender stole the item with the intention to sell it for profit, the courts would consider this a more serious crime that someone who stole for their own use.
- Alone vs in a group: Offences of Larceny involving the cooperation of multiple persons is usually considered to be more serious than persons acting alone. This is also relevant to the consideration in “planning and sophistication” above.
SUBJECTIVE FACTORS:
A Court must also take into account a person’s subjective circumstances when sentencing them for Larceny. This includes the following factors:
- Their criminal history or lack thereof including whether there is a history of fraud offences;
- Their age and maturity;
- Their family circumstances and their upbringing;
- Their education and employment;
- Their financial circumstances;
- Their mental health; and
- The rehabilitation that they have undertaken and therefore their prospects of rehabilitation;
- Whether the victim has been compensated or not;
- The context of the offending.
Steven Mercael
Principal Lawyer
Frequently Asked Questions
An offence of larceny is a Table 1 offence which means that in most cases it will be heard in the Local Court before a Magistrate. The Director of Public Prosecutions or the accused, however, can elect to have the case heard in the District Court before a judge and jury.
The Director of Public Prosecutions only elects to undertake more serious cases of Larceny or cases of Larceny in which there is a significant public interest.
There are several factors that a Court must consider when determining an appropriate sentence in a Larceny case. These factors are both the objective factors of the offending and the subjective circumstances of the person
Keep your mouth shut and contact Criminal Lawyers Group.
Where our clients have a history of dishonest offences and prior prison sentences, our lawyers have been able to avoid jail sentences. Our lawyers understand the impact of a full-time jail sentence on you and your family which is why it is important to engage our criminal lawyers to defend you.
At Criminal Lawyers Group, our criminal lawyers have helped many people to avoid criminal convictions for Larceny offences. Our lawyers understand the impact of a conviction on your future and it is important to engage our criminal lawyers to protect your rights.
Short Answer – Yes. Our team at Criminal Lawyers Group appear regularly for clients charged with a range of larceny and fraud offences. Our team will provide tailored advice for your case.
Please contact us if you cannot find an answer to your question.