Theft is a serious offence that can have a significant impact on your life and reputation. If you have been charged with this offence, it is important to seek legal advice immediately. Jackson John Defence Lawyers is a leading criminal defence law firm with extensive experience in defending clients charged with hindering an investigation. We understand the serious consequences that a conviction can have, and we will work tirelessly to protect your rights and interests.
The Law
Under section 131.1 of the Criminal Code Act 1995 (Cth), a person is guilty of an offence of theft if:
For the purposes of this section, a person’s appropriation of property belonging to another is taken not to be dishonest if the person appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. However, a person’s appropriation of property belonging to another may be dishonest even if the person or another person is willing to pay for the property.
Some examples of this theft include:
What Must the Prosecution Prove?
In order for the Prosecution to be successful, they must prove the following beyond reasonable doubt:
If the Prosecution cannot prove these elements beyond a reasonable doubt, the accused will not be convicted of a Commonwealth theft offence.
What are the Types of Penalties?
The maximum penalty for a Commonwealth theft offence is 10 years imprisonment. However, it is important to bear in mind that this the maximum penalty, and as such the type of penalties vary greatly.
The Court may consider sentencing you to one or more of the following:
A section 19B bond is a finding of guilt, but the Court does not record a conviction. A bond such as this is usually only given where you have a clear criminal history, your offending behaviour is minor, there is little chance of you offending again, and there were mitigating factors that led to the offending. Even if these facts apply to your case, there is no guarantee you will get this type of penalty. However, cogent subjective material and robust submissions on your behalf can be very persuasive to the Court.
There are two types of non-conviction orders under section 19B, namely non-conviction discharge with no conditions and non-conviction discharge with convictions. The conditions which may be imposed are:
The Court can impose the above conditions with or without a recognisance release order, which is a requirement that you will be discharged with no conviction upon giving the Court a sum of money to satisfy the Court that you will comply with the conditions imposed upon you for the duration of the order. If you comply, the sum of money will be returned to you. If not, the money can be forfeited to the Commonwealth.
A CRO is where the Court will convict you but release you without passing sentence so long as you enter a recognisance. This means that you will give the Court a sum of money as a promise to comply with certain conditions. The maximum term of the CRO is five years and may involve conditions such as to be of good behaviour, undertake or participate in rehabilitation or counselling (which cannot exceed two years). You will be subject to supervision by a parole officer and must comply with all reasonable directions of that person. You will not be allowed to travel overseas or interstate without the parole officer’s written permission. If you breach a CRO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
An RRO involves the Court sentencing you to a period of imprisonment but suspending in the following circumstances:
There is no maximum term for an RRO and it may involve conditions such as to be of good behaviour (not exceeding five years), undertake or participate in rehabilitation or counselling (which cannot exceed two years). You will be subject to supervision by a parole officer and must comply with all reasonable directions of that person (which cannot exceed two years). You will not be allowed to travel overseas or interstate without the parole officer’s written permission. If you breach an RRO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
If the total term of the sentence is greater than three years, the Court must specify a non-parole period, which is the minimum time you must spend in gaol.
A CCO is another type of sentence which allows you to remain in the community, but you are supervised by Community Corrections. It typically involves more onerous conditions than a CRO and you will receive a conviction, such as community service work, curfew, and place restrictions. The maximum term for a CCO is three years. If you breach a CCO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
If the Court is satisfied that imprisonment is warranted, it can order that you serve the term of imprisonment in the community while subject to the supervision of Community Corrections and conditions such as home detention (must not exceed 18 months), electronic monitoring, community service, curfew, or rehabilitation. If you breach an ICO, the Court can re-sentence you to a period of full-time custody.
An ICO cannot be imposed in the following circumstances:
The Court can order you to pay a sum of money for any loss incurred by the victim with respect to the offending. This can be made in addition to any other sentencing option.
This offence carries a maximum imprisonment of 10 years imprisonment. If the term is less than three years, the Court cannot impose a non-parole period. Instead, the Court will impose an RRO. The benefit of this is that the Parole Board will not be involved and cannot typically refuse your release.
If the term of imprisonment ordered by the Court is more than three years, the Court must impose a non-parole period (the minimum time you must spend in gaol). In State offences, the non-parole period is usually about 75% of the overall sentence. As with State matters, however, this period can be significantly reduced with impactful submissions on your behalf highlighting good prospects of rehabilitation in addition to other subjective circumstances. Usually, the non-parole periods for Commonwealth offences sit at about 60% of the overall sentence.
Unlike State offences, the Attorney-General will conduct its own assessment of whether you are to be released. The Attorney-General will consider any written material submitted on your behalf and the decision will be based upon an evaluation of the following matters:
Defences
The law states that:
and the conduct is a reasonable response in the circumstances as he or she perceives them.
Once self-defence is raised, the onus lies with the Prosecution to negative self-defence beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in self-defence. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Duress involves circumstances where you have been forced to commit a crime against your will, whether it be by way of threat, intimidation, or some other form of coercion. The threat must be so serious that it would have caused an ordinary person of like firmness in your situation to act in the same way. Furthermore, the threat must be the operative cause of your actions. In other words, if you are not worried about the threat at the time of the commission of the offence, or some other factor influences your decision to commit the crime, duress may not be established. Finally, the threat must be continuing. What this means is that if there is an opportunity at some point for you to obviate the threat, by reporting it to the police for example, duress may not be accepted.
Once duress is raised, the onus lies with the Prosecution to negative duress beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in duress. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
For necessity to be established, the following must exist at the time of the commission of the offence:
As is the case with self-defence, the onus lies with the Prosecution to negative necessity beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting out of necessity. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Why Jackson John?
Our lawyers have a deep understanding of the law relating to Commonwealth theft. We can explain your legal rights and options to you in plain English and help you develop a strong defence strategy. We also care about our clients and understand that being charged with a crime can be a very stressful and traumatic experience. We will treat you with compassion and respect, and we will work hard to protect your rights and interests. If you have been charged with Commonwealth theft, do not hesitate to contact Jackson John Defence Lawyers today. We are here to help you.
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In the spirit of reconciliation, Jackson John Defence Lawyers acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea and community.
We pay our respect to their Elders past and present and extend that respect to all Aboriginal and Torres Strait Islander Peoples today.
© 2024 JACKSON JOHN DEFENCE LAWYERS – Privacy Policy
Liability limited by a scheme approved under Professional Standards Legislation.
In the spirit of reconciliation, Jackson John Defence Lawyers acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea and community. We pay our respect to their Elders past and present and extend that respect to all Aboriginal and Torres Strait Islander Peoples today.
