Embezzlement and larceny are crimes that are all about trust. When someone embezzles money, they are betraying the trust that someone else has placed in them. This can be a devastating blow to the victim, both financially and emotionally.
These crimes can happen anywhere, from small businesses to large corporations. People of all ages, from entry-level employees to senior executives can commit the crime. But one thing is always the same: embezzlement is a crime that is motivated by greed.
In this article, we will take a closer look at the crime of embezzlement and larceny by clerks or servants under sections 155 to 163 of the Crimes Act 1900 of New South Wales.
Section 155: Clerk or Servant Definition
Who is a clerk or a servant? This section outlines who can be considered as such. Every person shall be deemed a clerk or servant if one is employed for any purpose, as, or:
- in the capacity of, a clerk, servant, or
- a collector of money, although temporarily only, or
- employed also by other persons, or employed to pay as well as receive money, or
- although the person had no authority from his or her employer to receive money, or other property, on his or her account,
Section 156 and 157: Larceny and Embezzlement by Clerks or Servants
When does someone commit the crime of larceny? Section 156 provides that a clerk or servant shall be liable for 10 years of imprisonment if he or she 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.
How about embezzlement? A clerk or servant commits the crime if the following requisites are present:
- He or she fraudulently embezzles, either the whole or any part of, any property delivered to, or received, or taken into possession by him or her.
- The purpose of such acts is for, or in the name, or on the account of, his or her master, or employer.
- If these acts are present, the clerk or servant is deemed to have stolen the same, although such property was not received into the possession of such master, or employer, otherwise than by the actual possession of such clerk, or servant.
Section 157 also imposes a ten-year imprisonment period for this criminal act.
Section 159 and 160: Larceny and Embezzlement by Persons in Public Service
Can persons in Public Service commit larceny? Yes. According to section 159, a person who is employed in the Public Service can be liable for a 10-year imprisonment if the following elements are present:
- The person steals any property, or any part thereof.
- The property was intrusted to him or her, or taken into his or her possession, or being in his or her custody, or under his or her control.
- Such possession is by virtue or colour of such employment.
Section 160: Embezzlement by Persons in the Public Service
Moreover, section 160 states that embezzlement is committed by any person employed in the Public Service if:
- He or she fraudulently embezzles any property, or any part thereof.
- Such property is intrusted to him or her, or taken into his or her possession, or being in his or her custody, or under his or her control.
- The person fraudulently secretes, removes, or in any manner fraudulently applies, or disposes of, the same, or any part thereof.
If all these elements are present, the person in the Public Service shall be liable to imprisonment for ten years.
Section 161: Proof of General Deficiency in Accounts
On the prosecution of a person for larceny, or embezzlement:
- as a clerk, or servant, or
- as a person employed in the Public Service,
where the charge is in respect of money, it shall not be necessary to prove the larceny, or embezzlement, by the accused of any specific sum of money, if there is proof of a general deficiency:
- on the examination of the books of account, or entries kept, or made by him or her, or otherwise, and
- the jury believes that he or she stole, or fraudulently embezzled the deficient money, or any part thereof.
Section 162: Larceny by Joint Owners
Can persons, even if they are joint owners, commit larceny? Yes. Section 162 says so. Any person being a member of any copartnership, or being one of two, or more, joint owners:
- steals, or embezzles a property
- such property belongs to the copartnership
may be convicted of, and punished for, the offence as if he or she was not a member of the copartnership, or one of such joint owners. The term “copartnership” also includes all corporations and societies.
Section 163: Trial for Embezzlement – Verdict of Larceny
Is there an instance where a person is charged for embezzlement but is acquitted because such act committed amounts to larceny? Yes, section 163 provides for such rule. Here, the provision says that on the trial of any person for:
- embezzlement, or
- the fraudulent application, or
- disposition, of property as a clerk, or servant, or person employed in Public Service,
it appears that the person obtained the property in such manner as to amount in law to larceny, the jury may acquit the person of the offence charged. The jury may find the person guilty of larceny, or of larceny as such clerk, servant, or person, as the case may be, and the person shall be liable to punishment accordingly.
Distinctions Between Embezzlement and Larceny
| Embezzlement | Larceny |
| • Involves the misuse of property that one can legally access. • The accused must be in a position of trust and confidence, entrusted with the possession of someone else’s property. • Often involves bookkeeping deception, which only involves the movement of money through the ledger book, not the physical relocation of the property. • The intent of the accused must be to permanently deprive the owner of that property. | • Involves gaining unlawful access to another person’s property. • Committed by a person with no involvement or authority to any aspect of the property. • Requires the physical movement and relocation of the property to be possessed by the accused. • The intent of the accused must be to permanently deprive the owner of that property. |
Both embezzlement and larceny can be forms of theft since they involve illegal takings. However, the main difference lies in the nature of access to the misappropriated property, with embezzlement involving lawful access and larceny involving unlawful access.
Talk to a Criminal Defence Attorney
If you are facing accusations of embezzlement or larceny in Australia, it is important to hire a criminal defence attorney immediately. These are serious charges that can result in significant penalties, including imprisonment.
Our criminal defence lawyers at JB Solicitors can help you understand your rights, build a strong defence, and negotiate the best possible outcome in your case.
Don’t wait until it’s too late to contact a criminal defence attorney. The sooner you contact an attorney, the better we will be able to prepare your defence.
