The maximum penalty for theft under section 74 of the Crimes Act 1958 is 10 years imprisonment. If the matter is heard in the Magistrates’ Court the maximum penalty is 2 years imprisonment.

The Offence of Theft

The offence of Theft is dishonestly appropriating property belonging to another with the intention of permanently depriving the other of it.

‘Appropriation’ is to include any assumption by a person of the rights of an owner of the property. You will have appropriated property if you do something with the property which only the owner of the property would have the right to do, for example, letting another person borrow the property. This applies even where you have come by the property innocently and you later assume the rights of an owner.

A dishonest appropriation occurs where a person obtains property dishonestly without having any belief that he or she has a legal right to the property. An appropriation of another’s property can be dishonest even if you or another person were willing to pay for the property.

What Actons Might Constitute “Theft”?

There must be a theft of property. For an offence under this provision, the property taken must be something tangible and must have some value. For example, it could include a cheque or even 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.

Property can include, but is not limited to:

  • Money
  • Personal property
  • Motor vehicles or aircrafts
  • Confidential information of a company
  • Electricity or gas
  • Cheques or bank accounts
  • Animals, including wild creatures
  • Land or things forming part of land, where you do not have the specific authority to do so, such as a trustee, personal representative or a liquidator of a company.

What the Police Must Prove

To find you guilty of Theft, the prosecution must prove each of the following elements beyond a reasonable doubt:

  • You appropriated property;
  • That belonged to another person;
  • You had the intention to permanently deprive the owner of the property; and
  • You had a dishonest state of mind.

Possible Defences for Theft

A person charged with theft can defend the charge by arguing:

  • That they had a legal right to deprive the owner of the property;
  • That they would have had the owners consent if the owner knew they were appropriating the property; or
  • That the owner of the property cannot be discovered by taking reasonable steps, such as notifying the police.

Which court will hear your matter?

This will depend on the value of the property that has been appropriated.

Where the value of the amount stolen is under $100,000 your case may be heard summarily in the Magistrates Court, provided the consent of the accused and the prosecution is obtained.

If the value of the amount stolen is over $100,000, your matter will be heard in the County or Supreme Court.

Diversion for Theft – Case Study

Our client was charged with three separate counts of Theft.

It was alleged that our client stole clothes and other items from an exclusive store in Melbourne. The charges alleged that she tried clothes on and then left the store wearing the various items. According to the Police brief of evidence, our client did this on three separate days.

On the last occasion, our client was noticed by security and Victoria Police were called. Our client made full admissions to Police and apologised profusely for her behaviour.

Once retained, we wrote lengthy representations to the police officer who charged our client, seeking a Diversion Notice on her behalf. We outlined our client’s remorse, her willingness to commence counselling in relation to the offending and noted she had almost completed a law degree.

Initially, the officer involved did not agree that Diversion would be suitable for our client, as she had committed the offence on a number of occasions. In his view, the matter was too serious for Diversion to be offered by Victoria Police.

We disagreed. We worked with our client to prepare character reference material and again sought a Diversion Notice from the police officer in her matter. Finally, he agreed to offer her a Diversion Notice, on the condition she makes a donation to a local charity.

One week later we attended with our client at the Melbourne Magistrates’ Court for her Diversion Hearing. We made submissions to the Magistrate and our client was ultimately granted a Diversion Plan which continued for six months.

That period of time has now passed. The client paid her donation to charity and now has no indication on her criminal record that she was ever charged by Victoria Police.

DISCLAIMER: This is a case study of an actual matter where the client was represented by Armstrong Legal. Details relating to the client have been changed to protect their confidentiality. The outcome, charges and facts have not been altered.

Our case studies are published to show real outcomes and give an indication of possible results. We cannot, and do not, guarantee a matter involving similar charges will get an identical outcome.


If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.


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