Stealing Offences

13 August 2023 in Criminal Law

What is stealing?

Put simply, stealing occurs when a person takes something belonging to someone else without permission and without the intention of returning it. Stealing offences include larceny, break and enter, robbery and fraud, extortion, obtaining a benefit by deception and embezzlement. These are governed by Part 4 of the Crimes Act 1900 and can be summary or indictable offences, depending on the nature of the offence and the value of the stolen goods.

If someone accidentally takes an item or something they believe they are legally allowed to take, this is not considered stealing.

Larceny

Larceny is the theft of money or personal property without the use of violence or fraud. Examples of larceny include shoplifting, stealing bicycles on the street or pick-pocketing.

Under Part 4, Division 5 of the Crimes Act, the prosecution must prove the following elements to convict a person of larceny:

1. The property is taken and carried away;
2. The property belongs to someone else;
3. The property is taken without the consent of the owner;
4. The property is taken with the intention of permanently depriving the owner of it; and
5. The property is taken dishonestly.

These elements must be established beyond a reasonable doubt, otherwise the accused must be acquitted.

Larceny offences carry a maximum sentence of 5 years imprisonment, or 2 years if heard in the Local Court. For property less than $2,000 in value, the maximum penalty is a fine of $2,200.

Break and Enter

A break and enter offence is an offence that encompasses circumstances where access to premises has been procured by breaching the security of the premises with the intent to commit an offence (such as theft or assault). Breaking and entering premises could include such actions as breaking through a window or climbing over a fence into someone’s property.

A break and enter offence is a serious offence and courts can impose a term of imprisonment on people found guilty of the offence. Depending on the circumstances of the offence, an offender may be liable for up to 25 years in prison.

To be guilty of a break and enter offence, it must be proved that an offender:

1. Broke into a house or dwelling;
2. Entered the premises; and
3. Had the intent to commit an offence or did commit an offence.

The seriousness of a break and enter offence can be increased by the presence of an aggravating circumstance. An aggravated offence exposes an offender to a higher maximum penalty.

Robbery

Robbery is the theft or attempted theft of money or personal property from a person through the use or threat of assault.

In NSW, robbery is the most serious of all the stealing offences. Gaol time is the most likely outcome for robbery offences. It carries a maximum penalty of 14 years imprisonment.

Under section 94 of the Crimes Act, to find a person guilty of robbery, it must be proved that:

1. The offender stole property from the person of another;
2. The offender stole property in the presence of another;
3. The offender stole property from the immediate personal care and protection of another; and
4. The property was taken by actual or threatened violence.

The seriousness of robbery can be increased by the presence of an aggravating circumstance. This can include where physical violence is used or where the victim is held captive or sustains an injury. For these offences, the maximum penalty is 20 years imprisonment. If the victim sustains a serious injury, the maximum penalty increases to 25 years with a minimum of 7 years in custody.

Fraud, Embezzlement, Obtaining and Extortion

Fraud is when a person obtains money or property they are not entitled to from another person through dishonest acts.

Embezzlement is a type of financial fraud, whereby a person entrusted with looking after money or property steals or misappropriates these funds or assets, for example, an employee stealing from their employer.

Obtaining is when money or property is not physically taken but is taken through other means such as deception.

Finally, extortion (often known as ‘black mail’) is where a person threatens another person to obtain their property.

Fraud, embezzlement, obtaining and extortion each carry a maximum penalty of 10 years imprisonment.

How can BSM help?

The criminal lawyers at Brander Smith McKnight are highly experienced with stealing offences. We can advise you of your legal rights and obligations and vigorously advocate for you in court.