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 Larceny?
Section 117 is fairly confusing, and it leaves most people wondering, “what is Larceny?” as Larceny is not strictly 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.
If that is still confusing, let’s break it down into easy-to-understand elements.
What elements do the Prosecution have to prove in a larceny case?
There are seven elements which the prosecution must prove, beyond a reasonable doubt, in order for a court to find a person guilty of the offence of larceny.
There are four physical elements for Larceny, namely that the person:
- Took and carried away;
- Property capable of being stolen;
- Which belonged to another; and
- Without the consent of the owner.
There are a further three mental elements for Larceny, namely that at the time of taking, the person acted:
- With the intention of permanently depriving the owner;
- Without a claim of right; and
- Fraudulently or dishonestly.
If the police fail to prove any of the above elements, a person cannot be found guilty of Larceny. We discuss the elements for Larceny in greater detail below.
- 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 property on the ground, such as a wallet or phone, and takes that property away, that person can be found guilty of Larceny.
- 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.
The distinction between facilitation and consent can sometimes be confusing and each case of Larceny needs to be determined on its own merits.
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.
This is complicated when a person takes property but claims to have an intention to return it to the owner at a later time, with specific conditions. Section 118 of the Crimes Act 1900 (NSW) outlines that intent to return property is no defence. This needs to be determined on a case by case basis. For example, borrowing a pen at the counter without asking would not amount to Larceny.
- 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.
The belief does not have to be reasonable, however, an accused person must establish that they genuinely and honestly held the belief that they had a legal right and entitlement to the property.
An example of a case that our criminal lawyers successfully defended, was where our client mistakenly took and carried away another person’s handbag at a nightclub. Our client was intoxicated and was under a genuine and honest belief that the bag belonged to her. The case against our client was dismissed.
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.
What is the maximum penalty for Larceny?
The maximum penalty for Larceny is imprisonment for five years.
However, if the matter is heard in the Local Court, the penalties available are subject to the jurisdictional limitations of the Local Court, which are dependent on the value of the property stolen:
- if the value exceeds $5,000 the maximum penalty is limited to two years imprisonment and/or a fine of $11,000;
- if the value does not exceed $5,000 the maximum penalty is two years imprisonment and/or a fine of $5,500;
- if the value does not exceed $2,000 the maximum penalty is two years imprisonment and/or a fine of $2,200.
If the matter is heard on indictment in the District Court, there is no jurisdictional limitation on the maximum penalty.
Which Court will hear my Larceny case?
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.
What factors will the Court take into account on sentence for Larceny?
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.
The 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 more valuable the property, the more serious the Larceny offence will be.
- 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, a person who steals a can of tuna out of hunger is different to a person who steals expensive headphones.
- The planning and sophistication: An offence of Larceny that involves significant planning and sophistication is generally considered to be more serious than an opportunistic act. This is because a person who plans an act has a lot more time to consider their actions as opposed to someone who is enticed by the spur of the moment.
- Personal use vs profit: persons who commit Larceny to later sell the goods are considered to be more serious cases of Larceny than cases where persons steal property for themselves. This is because the former is engaging in Larceny for financial gain. A persons who sells stolen goods can also be subject to other criminal offences.
- 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.
The 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;
- Their age and maturity;
- Their financial circumstances;
- Their family circumstances and their upbringing;
- Their education and employment;
- Their mental health; and
- The rehabilitation that they have undertaken;
What are the possible penalties for Larceny?
The sentence that a Court will impose in a case of Larceny will vary significantly depending on how objectively serious the offence is and the subjective case of the offender. For example, in one case of Larceny a Court might give a person a good behaviour bond without convicting them and in another case a Court might decide to send the person to prison.
Our Sydney criminal lawyers have years of experience dealing with Larceny offences. During the free initial consultation, our lawyers will provide advice on the possible penalties based on the specifics of the case.
Can I avoid a criminal conviction for Larceny?
Our criminal lawyers have helped many people to avoid criminal convictions for Larceny offences. Our lawyers appreciate the impact that a criminal conviction can have on a person and therefore they leave no stone unturned in the preparation of their cases.
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