This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Theft
There are various charges that police can lay in relation to theft. There is a simple charge of theft, as well as one of minor theft and there are also charges of going equipped for theft and going equipped with an offensive weapon for theft.
These pages cover the various charges, possible penalties, what the police have to prove, possible defences and which court will hear your matter.
A court can impose any of the following penalties:
- Imprisonment
- Intensive Correction Order
- Suspended Sentence
- Community Service Order
- Good Behaviour Order
- Fine
- Section 17 (ACT): Non-conviction Order
The Offence of Theft:
The offence of theft is found at section 308 of the Criminal Code 2002.
The maximum penalty for theft is a fine of 1000 penalty units and/or 10 years’ imprisonment.
What the Police Must Prove
There are several elements that make up the offence of theft. All of them need to be proved for a finding of guilt to be made. The elements are that a person must:
- dishonestly;
- appropriate;
- the property of another; with the
- intention of permanently depriving that other person of that property.
“Dishonesty’’, “Appropriation of Property”, “Person to Whom Property Belongs” and “Intention of Permanently Depriving’’ are all defined at length in Part 3.2 of the Code.
A person’s appropriation of someone else’s property can be dishonest even if that person or someone else was willing to pay for it.
“Appropriation” is defined as the assumption of the rights of an owner without the consent of the person to whom the property belongs. The Code specifically says that that definition applies even if a person came by property innocently and only assumed the rights of an owner at some later point.
A person has the intention to permanently deprive someone else of property even if he or she appropriates property without the intention of the other person permanently losing it. The test is if he or she intends to treat the property as his or hers and dispose of it regardless of the original owner’s rights.
Possible Defences to A Charge Of Theft
Intention to permanently deprive: It can be a defence to theft if the intention to permanently deprive the owner of property wasn’t formed at the time the property was taken. There must be some element of dishonesty to the taking of the property: R v Weatherstone. It is not enough for property to be taken, and then the intent to permanently deprive being formed afterwards.
Claim of right: It may also be a defence if you believe that you have a claim of right to the property. You would need to show that you genuinely and honestly believed that you had a legal entitlement to the property taken. It must also be a belief that you were entitled to the entire property taken and not merely part of it.
Which Court Will Hear Your Matter?
Theft charges can be dealt with in either the Supreme Court or the Magistrates Court. The defendant can “consent to the jurisdiction” of the Magistrates Court because the maximum term of 10 years’ imprisonment for theft is below the statutory cut-off of 14 years, at which point matters have to be dealt with in the Supreme Court if they relate to money or property (which, of course, theft does). However, the Code stipulates at Section 375 that if the value of the money or property (other than a motor vehicle) allegedly stolen is greater than $30,000, the matter has to go to the Supreme Court.
The Supreme Court can impose any penalty up to the maximum. The Magistrates Court cannot impose a prison sentence of longer than two years for an individual offence.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.