Larceny Offences in NSW
Larceny is a criminal offence in NSW that exists for crimes relating to “theft” or “stealing”.
The offence of larceny is dealt with under section 117 of the Crimes Act 1900 (NSW) (“the Act”).
Whilst there is no set definition of what constitutes “larceny”, in order to prove that larceny took place, the Police must prove the following elements, namely that the property:
- Is capable of being stolen;
- Belongs to someone other than the accused;
- Is taken and carried away without consent of the owner;
- Is taken with the intention of permanently depriving the owner of it; and
- Is taken dishonestly.
If the Police are unable to establish all the elements of this offence beyond reasonable doubt, then the accused must be acquitted. On the other hand, if all of the elements are established beyond reasonable doubt, then the accused will be found guilty of this offence.
In order to establish this element, it must be shown that the property is capable of being stolen.
In the Act, “property” is defined to include every description of:
- Real and personal property;
- Money, valuable securities, debts, and legacies; and
- All deeds and instruments relating to, or evidencing the title or right to any property, or giving a right to recover or receive any money or goods.
The definition is crucial because there is an “asportation” requirement, meaning that the property must be capable of being physically transported. For instance, ‘land’ is not capable of being stolen, however, as the Act sets out, documents that evidence the ‘title or right’ to the land are capable of being stolen.
Additionally, it must be shown that the property in question carries some level of value, even if it is an insignificant amount.
In the context of larceny, the concept of property “belonging” to another person is applied broadly, rather than strictly. Therefore, it only has to be shown that the property was either owned, controlled or possessed by someone other than the accused at the time it was being taken to establish this element.
In order to satisfy this condition, it must be demonstrated that there was some form of physical movement of the property in question by the accused, or someone acting on their behalf. Any evidence of the slightest movement of the property is sufficient to meet the threshold for this element.
Furthermore, it must be proven that the property was taken without consent of the owner.
For larceny, it must be demonstrated that the accused had knowledge that taking the property would permanently deprive the owner of it.
This element is not satisfied if the accused had only intended to take the property and only temporarily deprived the owner of it and had the intention to restore it. However, under section 118 of the Act, it is not a defence in circumstances where the accused appropriated the property temporarily to derive a benefit for themselves or some other third party.
It is sufficient that the accused realises at any point in time that their actions will result in the owner being permanently deprived of the property. For this reason, it does not have to be shown that the accused person had this thought at the time the property was being taken.
The Police must prove that the accused had acted dishonestly by demonstrating that the accused had not made a mistake and had knowledge that the property belonged to another person.
A test is applied to determine whether the accused was acting dishonestly. The test is whether the accused had acted ‘against the current standards of ordinary decent people’.
The primary defence to larceny is a claim of right.
If the property is taken because the accused genuinely believes that they are the real owner of the property, then they may have a claim of right defence.
There are a number of factors to take into account for this defence, which includes:
- The claim must be genuine and honest;
- The belief does not have to be reasonable;
- There must be a legal entitlement to the property, not a mere moral entitlement;
- The claim only extends to the amount of property or money you are legally entitled to. For example, if you take $5,000 from a person who may owe you $1,000, then the claim of right only extends to the $1,000.
- The claim of right is not confined to the specific property but can also extend to cases where what is taken is their equivalent value
Other defences may be available; however, it is only applicable in certain circumstances. A lawyer should be contacted to see whether these defences are available in your circumstances.
Larceny is an indictable offence and carries a maximum penalty of five (5) years imprisonment according to the Act.
If the value of the property exceeds $5,000, the charge must be dealt with in the Local Court unless the PProsecutor or accused elects to have the matter heard at the District Court. In this scenario, both the PProsecutor and accused have the power to elect.
If the value of the property is below $5,000, then the charge must be dealt with in the Local Court, unless the PProsecutor elects to have the matter heard at the District Court. In this scenario, only the PProsecutor has the power to elect.
The court in which the charge is dealt with is important as it affects the penalty that may imposed if found guilty of this offence. A jurisdictional limit is imposed on Magistrates in the Local Court, therefore the penalties that may apply at this level include:
- If the value of the property exceeds $5,000 – a maximum penalty of two (2) years imprisonment and/or 100 penalty units.
- If the value of the property is below $5,000 – a maximum penalty of two (2) years imprisonment and/or 50 penalty units.
- If the value of the property is below $2,000 – a maximum penalty of two (2) years imprisonment and/or 20 penalty units.
If the Prosecutor or accused elects to have the charge heard at the District Court, then the accused may be liable to imprisonment for five (5) years.
Whether the Prosecutor or accused elects to have the matter proceed before a District Court will depend on a number of factors. This is why it is important for you to seek legal advice so that you fully understand all of the options that are available to you.