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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Larceny By Finding (NSW)


Is “finders keepers” a crime? In some circumstances, a person can be charged with larceny by finding. The law expects the finder to make reasonable efforts to locate the owner before deciding to keep the property. Then, unless the original owner makes a claim, the finder will have the best claim of right over the property.

Legislation

Larceny is the crime of taking property or money that belongs to another, regardless of value. The High Court defined larceny in the leading case of Ilich v R in 1987:

“A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof.”

Section 117 of the Crimes Act 1900 states the maximum punishment for larceny is a maximum of 5 years imprisonment. The maximum penalty is 2 years if the matter is dealt with in the Local Court.

What police must prove

There are seven elements that must be proven, beyond a reasonable doubt, for a court to find a person guilty of larceny.

The four physical elements are that a person:

  1. took and carried away;
  2. property capable of being stolen;
  3. which belonged to another;
  4. without the consent of the owner.

The three mental elements are that a person acted:

  1. with the intention to permanently deprive the owner;
  2. without a claim of right; and
  3. fraudulently or dishonestly.

In relation to larceny by finding, the critical element is the mental element of fraud or dishonesty. The question is: was the person acting fraudulently or dishonestly when they took the property?

To prove the person acted fraudulently or dishonestly, the prosecution will need to show the person did not take all reasonable steps to find the property’s owner. This needs to be assessed on a case-by-case basis.

If a person genuinely believes the property is lost, and they genuinely believe the property owner cannot be found, they cannot be found guilty of larceny by finding.

A person cannot be charged with the offence if the property has been abandoned i.e. the owner has intentionally given up any interest in the property.

Penalties

The penalties for larceny by stealing vary because the court must consider a range of factors when sentencing for the offence. These include:

  • the value of the money or item taken;
  • the type of property, differentiating between items taken out of need and those taken for materialistic reasons;
  • any planning or sophistication involved;
  • whether the property was taken for personal use or profit;
  • whether the person committed the crime alone or in a group;
  • any criminal record for the person;
  • the plea entered.

Larceny by finding cases

In 2010 a Melbourne couple discovered more than $100,000 that had been sewn into a suitcase they bought from a Salvation Army store. A woman had donated the suitcase, unaware her husband had hidden cash in it. The couple who bought the suitcase were arrested and charged with larceny by finding when they made no attempt to find the luggage’s owner, instead dividing the money into several bank accounts and spending some of it.

In 2013, a Sydney man found a bag on a table in a McDonald’s restaurant. The bag contained $11,700 cash, a Victorian driver’s licence, a Medicare card, an iPhone, a  hotel swipe card and other items. The man made no attempt to locate the bag’s owner, instead splitting the money with friends and spending some. He was subsequently convicted of larceny by finding, receiving a 12-month good behaviour bond.

In 1996, a Darwin woman discovered eight Japanese banknotes scattered on a coastal walkway while pushing her infant daughter in a pram. The woman took the notes to a foreign exchange bureau and exchanged seven notes for $671, giving the eighth to a friend. She was convicted of larceny by finding. She appealed on the basis she had a reasonable belief the owner of the banknotes could not be discovered but her appeal was dismissed.

In 1983, a Sydney man found a camera hanging on a fence while he was walking in a laneway. He was charged with larceny by finding and fined $100. The man appealed but was not successful. The court ruled that there was ample evidence, given the nature and value of the camera and where it was found, that it had not been abandoned by the owner. It also pointed to the fact the man had open to him a variety of reasonable options to locate the owner but did not exercise them.

For advice or representation in any legal matter, please contact Armstrong Legal.

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