Stealing Offences
What is Stealing?
Stealing, otherwise known as larceny, is the act of taking someone else’s property without their permission with the intent to permanently deprive them of it.
The Prosecution must prove the following essential elements beyond a reasonable doubt:
- The property must belong to someone other than the accused;
- The property must be taken and carried away; and
- The taking must be without the consent of the owner of the property.
In addition to these three essential elements, there are a further three considerations which relate to the accused’s mental state at the time of the taking, namely:
- The property must be taken with the intention of permanently depriving the owner of it;
- The property must be taken without a claim of right made in good faith; and
- The property must be taken dishonestly.
What You Need to Know
The Property Must Belong to Someone Other than the Accused
In various legal contexts, possession, control, and ownership are distinct concepts. These can become complex, as exemplified by the scenario of purchasing a diamond from a jeweller. Upon taking physical delivery of the diamond, you would own it, control it, and possess it. However, if you were to store it in a bank security box, you would no longer possess it, though you would still own and control it for certain legal purposes. In the event of a robbery, the thief would possess the diamond, despite you remaining its lawful owner.
When considering whether the property must belong to someone other than the accused, the law considers the widest possible interpretation of ‘belonging.’ Therefore, at the time of the taking, the property must be owned, controlled, or possessed by someone other than the accused.
Taking of Property
Before there is a stealing in law, there must be some physical movement of the property, no matter how slight, by the accused or someone acting on the accused’s behest.
Intention to Permanently Deprive
This means that the accused must have taken the property with the intention of keeping it for themselves or disposing of it in a way that would permanently deprive the owner of it.
Taking Without Consent of Owner
If the accused genuinely claims that he or she was legally justified in taking the property then, even if legally wrong in that claim, he or she is not guilty of stealing. However, the claim must be one of legal right. The question is whether, at the time of the taking, the accused genuinely believed that he or she had such a legal right. It is not sufficient that the accused believed that he or she had a moral entitlement to the property.
By the intentional taking of the property without mistake and with knowledge that the property of another person was being taken, a person is taken to have acted dishonestly. Whether the accused was acting dishonestly is for a jury or Magistrate to determine, applying the current standards of ordinary decent people.
What are the Penalties for Stealing?
The severity of the penalty depends on the value of the property stolen. If the value is less than $5,000, it is considered a summary offence and can be dealt with in the Local Court with a maximum penalty of 2 years imprisonment. If the value exceeds $5,000, it is considered an indictable offence and can be dealt with in the District Court with a maximum penalty of 5 years imprisonment.
Is there any Possible Defences?
There are several defences applicable to charges of this nature.
Firstly, you may assert a claim of right. This defence can be used if you genuinely believed you had a legal right to take the property, even if that belief was mistaken.
For example, if you took property that you believed was rightfully yours but was someone else's property, you may have a valid claim of right defence.
Another defence is honest and reasonable mistake. This defence can be used if you took the property because you honestly and reasonably believed you had a legal right to take it.
For example, if you were given permission to take property by someone you believed had the authority to do so, but it turned out they did not, you may have a valid, honest and reasonable mistake defence.
You may also be able to assert a claim of possession. This defence can be used if you believe you were the rightful owner of the property because you had possession of it for a certain period of time.
For example, if you found the property that had been abandoned and believed that you had a legal right to keep it, you may have a valid claim of possession defence.
When You Believe You Had a Legal Right to Take Property
You may assert a claim of right. This defence can be used if you genuinely believed that you had a legal right to take the property, even if that belief was mistaken. For example, if you took property that you believed was rightfully yours, but was the property of someone else, you may have a valid claim of right defence.
Honest & Reasonable Mistake
This defence can be used if you took the property because you honestly and reasonably believed that you had a legal right to take it. For example, if you were given permission to take property by someone who you believed had the authority to do so, but it turned out they did not, you may have a valid honest and reasonable mistake defence.
Asserting Your Right: The Claim of Possession
You may also be able to assert a claim of possession. This defence can be used if you believed that you were the rightful owner of the property because you had possession of it for a certain period of time. For example, if you found property that had been abandoned and believed that you had a legal right to keep it, you may have a valid claim of possession defence.
Why Jackson John Defence Lawyers?
Given the various nuances in this area, it is imperative you seek immediate legal advice. The experienced team at Jackson John Defence Lawyers can help you achieve a positive outcome. Don’t hesitate to call us today for your free 15 minute initial consultation.
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