Larceny is the legal term for stealing or theft under New South Wales law. It is one of the most commonly prosecuted criminal offences in NSW and, under Section 117 of the Crimes Act 1900, carries a maximum penalty of five years imprisonment. The good news is that imprisonment is rarely the outcome. With the right legal advice, a conviction can often be avoided altogether.
What Is Larceny Under NSW Law?
Larceny is a common law offence. Unlike many criminal charges, it is not formally defined within the Crimes Act 1900 itself. Instead, the definition comes from the common law, most clearly stated by the High Court of Australia in Ilich v R (1987) HCA 1:
“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.”
In practical terms, larceny means taking someone else’s property without their permission and without any honest belief that you were entitled to it, intending to keep it permanently. One important point is that larceny does not involve violence. The moment force or intimidation is used against a person, the charge becomes robbery, which is an entirely different and more serious offence. Larceny is the same offence known as theft or stealing in other Australian states and territories.
Common Examples of Larceny
Larceny is one of the most commonly prosecuted offences in New South Wales and covers a wide range of conduct. Some examples include:
- Taking someone’s wallet or purse without their knowledge or permission
- Shoplifting merchandise from a store
- Taking someone’s bicycle or other personal property without the owner’s consent
- Stealing a vehicle or its parts
- Removing items from a rental property before the lease has ended and without the landlord’s permission
- Taking tools or equipment from a construction site
- Breaking into a home or office and removing property
- Stealing someone’s identity by using their personal information to make unauthorised purchases or open credit accounts
Larceny Under Section 117 of the Crimes Act 1900 NSW
The offence of larceny is contained in Section 117 of the Crimes Act 1900 (NSW), which provides that: “Whosoever commits larceny… shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years.”
If the matter is heard in the District Court, the maximum penalty is five years imprisonment. 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:
| Value of Stolen Property | Maximum Local Court Penalty |
|---|---|
| Exceeds $5,000 | 2 years imprisonment and/or fine of $11,000 |
| Exceeds $2,000 but does not exceed $5,000 | 12 months imprisonment and/or fine of $5,500 |
| Does not exceed $2,000 | 2 years imprisonment and/or fine of $2,200 |
Imprisonment is only ever imposed as a last resort. The most common penalty for a larceny offence in NSW is a fine, with the average fine being $300. The next most common outcome is a Section 9 good behaviour bond, which results in a conviction being recorded on your criminal record. A Section 10 dismissal or conditional release order is a far more favourable outcome: while you are found guilty of the offence, no conviction is recorded on your criminal record.
This distinction matters enormously for future employment, overseas travel, and professional licensing. Alternative penalties may also include Community Correction Orders (CCOs) and Intensive Correction Orders (ICOs), which allow offenders to serve a sentence in the community rather than in custody.
Larceny vs Theft vs Robbery: What Is the Difference?
These terms are often used interchangeably in everyday conversation, but they carry distinct legal meanings.
| Larceny | Theft | Robbery | |
|---|---|---|---|
| Used In | NSW common law | Across common law and civil law jurisdictions | All Australian jurisdictions |
| Definition | Unlawful taking with intent to permanently deprive | Broader concept including embezzlement, fraud, false pretences | Taking property by force or intimidation against a person |
| Involves Violence? | No | Generally no | Yes |
Larceny involves the taking of property. Burglary, by contrast, involves unlawful entry into a building with intent to commit an offence. Larceny does not involve violence or the threat of force, which is precisely what distinguishes it from robbery.
What Elements Must the Prosecution Prove for a Larceny Conviction?
The prosecution must prove six elements beyond a reasonable doubt for a larceny conviction. If the prosecution fails to prove any single element, the accused cannot be found guilty.
Physical Elements
1. Took and carried away: The accused must have physically moved the property, even if only slightly. Even the smallest movement can satisfy this element if all other elements are met.
2. Property capable of being stolen: The property must be tangible and must have some value. This can include physical items, cheques, or gas, but would not include intangible things such as information.
3. The property belonged to another: Ownership can be established through single ownership, joint ownership, possession, control, or larceny by finding.
4. No consent from the owner: The property must have been taken without the owner’s consent or permission. The owner must not have given permission for the item to be taken.
Mental Elements
5. Intent to permanently deprive the owner: The prosecution must prove that the accused intended to permanently deprive the owner at the time of taking. This is where things become complicated when a person claims they intended to return the item. The intent to return property is not a valid defence under Section 118 of the Crimes Act. Each case is assessed individually.
6. Without a claim of right, committed fraudulently: The prosecution must prove the taking was dishonest and that the accused did not have a genuine and honest belief in a legal right to the property at the time of taking.
Defences Against a Larceny Charge in NSW
Several defences are available to a person charged with larceny. A skilled larceny lawyer will identify which defence, if any, applies to your specific circumstances.
Claim of right: A claim of right can serve as a defence if the accused honestly believed they had a legal entitlement to the property taken. This is not the same as claiming a moral right. The accused must demonstrate a genuine and honest belief in a legal entitlement. This defence is among the most commonly misunderstood: many clients believe “I thought it was fair that I took it” is enough, but the belief must relate to a specific legal right.
Duress: Duress is a recognised defence against larceny charges. To establish duress, the accused must show they acted because of threats of death or really serious injury to themselves or a member of their family, and that a person of ordinary firmness in the same position would have given in to those threats.
Necessity: In rare circumstances, necessity may be available where the accused committed the offence to prevent a greater harm.
No intention to permanently deprive: If the intention to permanently deprive the owner of the property was not formed at the time the property was taken, this can serve as a defence against a larceny charge.
Factors That Affect the Severity of Larceny Charges
Not all larceny charges are treated the same way. The following factors can influence how seriously the court views the offence:
- The value of the property stolen
- The degree of planning and premeditation involved
- The nature of the item stolen and its significance to the owner
- Whether the accused has prior criminal convictions
- The accused’s personal circumstances and any evidence of genuine remorse
How a Larceny Lawyer Can Help You
Being charged with larceny, even for a minor matter, can be deeply unsettling. The stress of facing court, the risk of a criminal record, and uncertainty about what lies ahead can be overwhelming. This is why it is advisable to seek legal advice early. Clients who get advice before their first court date consistently have better outcomes than those who attend court alone.
A larceny lawyer can help in the following ways:
- Identify possible defences to the charges and assess your prospects honestly
- Help you understand the legal process and what to expect in court
- Work towards a Section 10 dismissal to avoid a conviction being recorded
- Negotiate with the prosecution on your behalf
- Advise on alternative penalties, such as CCOs or ICOs if a conviction is likely
- Represent you in the Local Court or District Court depending on where the matter is heard
Many larceny lawyers offer a free initial consultation to discuss your case. The experience of a larceny lawyer can be crucial in navigating the complexities of the legal system, and choosing a lawyer with a strong track record in larceny matters can significantly improve the outcome of your case. Hiring the right larceny lawyer can make all the difference.
Speak With Our Criminal Lawyers Today
If you have been charged with larceny or believe you are under investigation, do not wait to get advice. Seeking legal advice early is one of the most important steps you can take. Our experienced criminal law team at JB Solicitors regularly assists clients across NSW with larceny charges at all levels of seriousness.
We can advise you on the charges you face, the defences available to you, and the best path forward to protect your record and your future. Contact our Sydney criminal lawyers today for a confidential discussion about your matter.
Frequently Asked Questions About Larceny
What is larceny?
Larceny is the unlawful taking and carrying away of personal property belonging to another person with the intent to permanently deprive them of it. The offence is contained in Section 117 of the Crimes Act 1900 (NSW) and is the same offence known as theft or stealing in other Australian jurisdictions.
What is the maximum penalty for larceny in NSW?
The maximum penalty is five years imprisonment if the matter is heard in the District Court. If dealt with in the Local Court, the maximum penalty depends on the value of the property stolen, up to two years imprisonment and/or a fine of $11,000 for property exceeding $5,000.
What is the most common penalty for larceny?
The most common penalty for a larceny offence in NSW is a fine, with the average fine being approximately $300. The next most common penalty is a Section 9 good behaviour bond, which does result in a conviction being recorded on your criminal record.
Can I avoid a criminal conviction for larceny?
Yes. A Section 10 dismissal or conditional release order means that while you are found guilty of the offence, no conviction is recorded on your criminal record. An experienced larceny lawyer can advise whether this outcome is achievable in your circumstances.
Is the intention to return the property a valid defence?
No. Under Section 118 of the Crimes Act 1900, the intent to return the property is not a valid defence to larceny. The relevant question is what the accused’s intention was at the time of taking the property.
What is a claim of right defence?
A claim of right can be a defence where the accused honestly and genuinely believed they had a legal entitlement to the property taken. It is not sufficient to claim a moral right; the belief must relate to a specific legal right to the property.
What is the difference between larceny and robbery?
Larceny does not involve violence or the threat of force against a person. Robbery, by contrast, involves the use of force or intimidation against a person and is a far more serious offence carrying significantly higher penalties.
Do I need a lawyer for a larceny charge?
While you are not legally required to have a lawyer, it is strongly advisable. A larceny lawyer can identify defences, negotiate with the prosecution, and work to achieve the best possible outcome, including avoiding a criminal conviction on your record altogether. It is advisable to seek legal advice early if you have been charged with larceny.
