Australia: Larceny in NSW

What is 'Larceny'?

In New South Wales, 'stealing' or 'theft' falls into a few different categories of crimes. 'Robbery' generally covers using threats and/or physical force to steal directly from people. There are also offences under the 'housebreaking' division that cover breaking and entering into a premises/home and stealing property from there. 'Larceny' is the simplest of these offences and refers to the basic act of stealing without any further components. Put simply a larceny is physically taking something that doesn't belong to you without permission.

Larceny is mentioned in s 117 of the Crimes Act 1900 (NSW) but a breakdown of the crime itself cannot be found in legislation. The elements of larceny have been developed through case law. In Australia, the High Court has set out the elements of larceny in several different judgments.

Physical elements of the offence:

Most crimes have a physical and mental aspect to them. The physical aspect refers to the actual conduct or action that must be taken in order for the crime to have occurred. There are four physical elements of larceny. For the prosecution to prove a larceny, there must be:

• Tangible personal property;
• That is in possession of another;
• That is physically taken and carried away;
• Without the consent of the person who possessed the property.

Tangible personal property:

For it to be a larceny, the property must be a specific, physical, moveable item. Larceny does not include the stealing of information, digital money, virtual designs/property or anything else intangible.

It also traditionally did not include animals and land fixtures but there have been sections added into the Crimes Act to ensure that the theft of such things are still to be treated in the same way a normal larceny is. There are specific sections for the stealing of dogs, cattle, trees/plants and materials (like wood, glass or metal) that are fixed to a house or land.

The property must also have some kind of value. Most things have a monetary value but the courts have stated that things with a merely sentimental value will also suffice. There have been specific sections added in to deal with the stealing of physical papers that are technically worthless but provide proof or authority over valuable goods (for example, a cheque or a will).

In possession of another:

Larceny is known as an offence against possession. This is in reference to the difference between owning something and possessing it. Often those two things coincide but not always. For example, someone who is renting a car is in lawful possession of the car, but they do not own it. Technically it is possible for the owner of the car to commit a larceny against the renter by taking the car. This is because the person renting the car has the current legal right to possession, not the owner.

Possession can be established in multiple ways. A person could have "actual possession" which means they have current physical custody of the property. Usually this means it is on their person or in a place where only they have the right to access and use it (for example, the property is in a bag or in their house).

A person could also have "constructive possession" which means they are not currently in physical custody of the property, but they have the right to take possession whenever they want. The most common example of constructive possession is a car – a person is still in possession of their car even if they park it and go somewhere else.

The courts have also made it clear that you can have possession over unlawful property and that a larceny can be committed when unlawful property is taken. The most common example of unlawful property is illicit drugs like cannabis or cocaine.

However, because larceny is an offence against possession, you cannot commit a larceny if you take abandoned goods. This is because if a person chooses to abandon property, they have impliedly renounced their rights of possession over it.

The courts are quite strict in what they will consider to be abandoned property. Looking at the circumstances in which the property was found, it must be appear highly likely that a person has purposefully left the property and does not care what happens to it. This is different from a person who has lost property and is likely still trying to find it. If it is more likely the property is lost, the court expects to see reasonable efforts to locate the owner before the property is taken.

Physically taken and carried away:

A larceny requires an actual physical 'picking up' and/or moving of an item. Although the threshold for this requirement is not very high – the court has stated that even the slightest of movements will be sufficient.

Without consent:

The taking or moving of property must be without the permission of the owner and/or person in possession of the property. This includes actual and implied consent.

Difficulties arise in this area because consent can be misleadingly obtained in certain situations – for example, a person giving permission may be mistaken as to the identity of the person taking the property.

Implied consent can also be abused. This is particularly the case in retail contexts. At most shops there is an implied consent for people to pick up and carry objects around the store for the purpose of browsing and purchasing. It is not expected in most stores that you must get explicit permission from the shop owner or manager before you can pick up and move items. However, in the case of shoplifting, a larceny can occur even before a person leaves the shop if they have picked up an object and never had the intention to pay for it. Concealing items or placing them in bag or pocket without first purchasing it is often seen as abusing the implied licence to carry objects in a store.

Mental elements of the offence:

The mental element of a crime generally refers to the required 'state of mind' a person must have while they are committing the physical aspects of the crime. For the prosecution to prove a larceny they must show two aspects of a person's state of mind at the time:

• They an intention to permanently deprive the owner/possessor of the property; and
• They did so dishonestly.

Intention to permanently deprive:

The prosecution must show evidence that points to an actual intention at the time the property was taken to permanently deprive the owner and/or person in possession of the property. Intention to permanently deprive is often shown either through a person using the property like it's their own, consuming the property or by significantly altering it in some way.

However, section 118 of the Crimes Act also states that intention to return the property is not enough on its own to defend a charge of larceny. If a person has taken property and used it for their own purposes and benefit but can show an intention to one day return it or repay the owner, they can still be found guilty.

Dishonesty:

The court must also determine that a defendant's actions were dishonest. This means they must specifically identify the knowledge, belief or intention that accompanied the alleged larceny and decide whether this was dishonest according to the standard of "ordinary, decent people".

Dishonesty becomes more difficult to find when there are aspects of mistake, accident or miscommunication involved at the time property is taken. Sometimes people accidentally take property that is not theirs (for example, taking a suitcase at the airport that looks similar to yours). People can also mistakenly think they have the consent of the owner to take property when they do not. While these actions are not initially dishonest, the court may still find a person has committed a larceny if they later become aware of the mistake/confusion and choose not to rectify it.

Defences:

Claim of right:

If a person has a genuine belief they have a right to the property or money that is in someone else's hands (even though this is not true in actual fact) they may be able to use the defence of a claim of right.

The claim must come from an honestly held belief (not from fanciful or wishful thinking) but it is not required to be reasonable. They must believe that have a legal entitlement to property, not simply moral entitlement (for example, a belief you deserved more payment for services does not give you the right to steal from another).

If you are exercising a claim of right, it must encompass all of the property that has been taken. This means if you believe you were entitled to a certain set of property or a certain amount of money but take more property or money than you had a right to, you have still committed a larceny.

If a claim is sufficiently raised on the facts, the prosecution must disprove beyond reasonable doubt that such a claim exists.

Penalties:

Penalties for larceny are divided based on the estimated value of property stolen. Regardless of the value of property stolen, all larcenies have the same maximum prison sentence attached. The maximum fine increases with the increasing value of the property.

The lesser value larceny offences are classified as "Table 2 Offences" which means they will be dealt with in the Local Court unless the prosecution choose to take it up to the District Court, where more severe penalties are available. The higher value larcenies are "Table 1 Offences" which also means they will be dealt with in the Local Court unless the prosecution or the defendant choose to take it to the District Court. Certain situations might mean the practices and trial structure of the District Court jurisdiction are more appropriate in the circumstances.

For a larceny of property that is worth under $2000, police may choose to issue a person with an infringement notice rather than a court attendance notice. This is usually for very low value larcenies and means a person will not have to go to court and risk a criminal conviction. They will only have to pay a maximum fine of $300.