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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...

Larceny (NSW)


Larceny is the same offence that is known as theft or stealing in other jurisdictions. The offence of larceny is contained in section 117 of the Crimes Act 1900 and carries a maximum penalty of five years imprisonment. However, if the matter is dealt with in the Local Court, the penalties available are subject to limitations depending on the value of the property stolen.

Penalties

The penalties that apply to larceny are as follows:

  • If the value exceeds $5,000 the maximum penalty is limited to two years imprisonment and/or 100 penalty units.
  • If the value does not exceed $5,000, the maximum penalty is two years imprisonment and/or 50 penalty units.
  • If the value does not exceed $2,000 the maximum penalty is two years imprisonment and/or 20 penalty units.

What Actions Might Constitute Larceny?

For the offence of larceny to be proven, there must have been a theft of property. The property taken must be something tangible and must have some value. For example, property could include a cheque or even a quantity gas but would not include information.

The theft must be of property that lawfully belonged to someone else, that is from someone who had possession of the item. In some cases, people who do not ‘own’ something may still have the right to lawfully possess it. Alternatively, courts have also found that prohibited drugs can be subject to larceny though the person has no legal right to possess the drug.

Intending to return the property, or money or other property of equal value at a later time is not a defence if you or someone else has received a benefit. For example, if item is taken from a store with the intention of returning it to claim a refund.

What the Police Must Prove

In order for a court to find a person guilty of larceny beyond a reasonable doubt, it must be satisfied that:

  1. The accused you took property that belonged to someone else;
  2. They did so without the owner’s consent;
  3. They did so with the intention of permanently depriving the owner of it.

Possible Defences

There are several valid legal defences to a larceny charge.

No Intention to permanently deprive

It can be defence to larceny 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 the accused honestly believed that they had a claim of right to the property. The accused would need to show that they genuinely and honestly believed that they had a legal entitlement to the property taken. It must also be a belief that they were entitled to the entire property taken and not merely part of it.

If you have been charged with an offence under this provision and believe that you may have a defence, you should obtain competent legal advice early on in your matter.

Jurisdiction

A larceny matter will most likely be dealt with in the Local Court. However the DPP or the defendant can elect to have the matter dealt with in the District Court.

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

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