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Theft & Stealing

Theft and stealing (larceny), is the act of the unauthorised removal of another’s property, with the intention of permanently depriving the owner of it. Larceny differs from robbery in the fact that it is generally non-violent in nature.

The offence of theft and stealing are governed by Crime Act 1900 (NSW). There are several acts defined by the law that constitutes this offence. Stealing includes the taking, extorting, obtaining, embezzling, or otherwise disposing of the property in question. (Section 187, Crimes Act 1900)

How theft is committed

Under the Crimes Act 1900 (NSW), if a person deals with property dishonestly, without the owner’s consent and intending to deprive the owner of their property, or make a serious encroachment on the proprietary rights of the owner, then they are guilty of theft.

From the above definition, certain elements must be present in order to complete the offence of stealing under the law. The elements of the offence are the following:
1. the property must be owned by another person;
2. the property must be taken and carried away by the accused; and
3. the taking must without the consent of the owner

There are additional elements that relates to the mental state of the accused at the time of the taking. The taking must be with the intention to deprive the owner of the property permanently. Further, it must not be by virtue of a claim in good faith by the accused over the property and that the taking was made dishonestly. Thus, if the abovementioned elements are present, an offence of stealing is committed.

Does it matter if the accused wants to return the stolen property?

There may be times that during the trial the accused want to return the property taken or appropriated. The intention of the accused to return the property, however noble it is, will not have the effect of his acquittal provided that all the elements of the offence are duly proven. This is because the offence has already been committed. Thus, it will not exonerate him by returning the stolen property.

Under this law, encroachment on proprietary rights means that the property is dealt with in a way that creates a substantial risk that the property will not be returned to the owner, or that the value of the property will be greatly diminished when the owner does get it back. Also, where a property is treated as the defendant’s own property to dispose of, disregarding the actual property owner’s rights.

Other forms
A person is also liable to a charge of theft where a property has unlawfully come into his or her possession. A good example is when a person has bought an item, knowing that the price of the item is much less than usual, and discovers that the item has been stolen from another person. It may be reasonable to assume that the person receiving the item had knowledge that the item may have been stolen.

The misuse of powers by an agent or trustee (or similar power) to gain from the sale of property, or interest earned from the misappropriation of property, may also be considered theft.

Whosoever receives any animal, unlawfully killed, with intent to steal the carcass, or skin, or another part thereof, knowing the same to have been so killed, or receives, or disposes of, or attempts to dispose of, any part of an animal so killed, or of an animal unlawfully stolen, knowing it to have been so killed or so stolen, shall be guilty of a serious indictable offence, and may be indicted and punished as if the animal had been stolen, and the accused had unlawfully received the same. (Section 190, Crimes Act 1900)

The penalty

In NSW, a person found guilty of the offence of stealing in a dwelling-house shall be liable for imprisonment for seven years. However, there are aggravating circumstances that make the penalty higher than usual. If the offender steals any chattel, money, or valuable security, from another person, shall be liable to imprisonment for twenty years if in doing so he uses corporal violence on any person or intentionally or recklessly inflicts actual bodily harm on any person, or deprives any person of his or her liberty. (Section 95, Crimes Act 1900)

A person who receives a stolen property knowing it to be a stolen property, the stealing thereof amounts to the serious indictable offence, shall likewise be guilty of a serious indictable offence which means that he may either suffer imprisonment 10 years or 12 years depending on the kind of property involved in the stealing.

For someone who is a first time offender, the penalty is likely to be a good behaviour bond for 12 months.

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