Larceny by Clerk

In NSW, the offence of Larceny by Clerk or Servant carries a maximum penalty of ten years imprisonment. This offence covers any instances of theft from an employer by an employee, which is generally considered a more serious offence than theft under other circumstances because it involves a breach of trust.

What is Larceny by Clerk?

This offence is governed by section 156 of the Crimes Act 1900 (NSW) which states: 

Whosoever, being a clerk, or servant, steals any property belonging to, or in the possession, or power of, his or her master, or employer, or any property into or for which it has been converted, or exchanged, shall be liable to imprisonment for ten years.

There must be a theft of property. 

The property taken must belong to the offender’s ‘master’ or ‘employer’. This is generally taken to be an employer, which could be a single person, a business or a corporation. By law you are a ‘clerk or servant’ if you are “bound to obey the orders of [your] employer,” that is, you are under their control: R v Negus.

Common examples of offences under this provision are:

• Taking cash from the till;
• Taking sale stock from the business and either keeping the item or selling the item and retaining the profit.
• Transferring cash from business accounts to a personal account.

What Must be Proven?

For a person to be found guilty of Larceny by Clerk, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• That you took property;

• That belonged to someone else;

• You did so without the owner’s consent;

• With the intention of permanently depriving the owner of it.

• You were a ‘clerk’ or ‘servant’ of the owner of the property at the time of the offence.

If the Prosecution does not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear the Matter?

This will depend on the value of the property alleged to have been taken.

If the value of the property exceeds $5,000, it is a Table 1 offence, which means that it will be dealt with in the Local Court unless the Prosecution or accused elects to have the matter dealt with in the District Court.

If the value of the property does not exceed $5,000, it is a Table 2 offence, which means that it will be dealt with in the Local Court unless the Prosecution elects to have the matter dealt with in the District Court.

Possible Defences to Larceny by Clerk

The following defences may be available for a Larceny by Clerk charge:

• Duress;
• Necessity;
• Claim of right. 

Common Questions about Larceny by Clerk

Will I receive a criminal conviction?

A conviction and criminal record for this offence is very likely. 

In NSW, a Court can impose any of the following penalties for this charge.

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10 

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for this offence might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover a conviction for an offence of dishonesty can completely rule out certain career paths such as teaching and a range of government employment options. 

Will I go to Gaol?

It is possible that you might receive a Gaol sentence. Amongst other things in determining a sentence, the Court will consider:

• The value of the theft;
• The degree of sophistication;
• Whether it was just one time, or a series of acts or over a very long period;
• Whether you can repay the money;
• And your personal circumstances.

If I pay my employer back will the police drop the charges?

Generally, no, but if you can repay the money this is likely to assist in your sentence. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.