Sydney Stealing and Shoplifting Lawyers

Larceny is a criminal offence that involves taking property belonging to another person without consent and with the intention of permanently depriving the owner of that property. To obtain a conviction, the prosecution must prove beyond reasonable doubt that the property was taken and carried away, belonged to someone else, was taken without permission, was taken dishonestly, and that the accused did not have a genuine claim of right or intention to return the property.

A common issue in larceny matters is whether the accused honestly believed they were legally entitled to the property, known as a claim of right, or whether the conduct amounted to an honest mistake. If any required element of the offence cannot be proven, a verdict of not guilty must follow.

A person who commits larceny, or any indictable offence punishable in the same manner as larceny under the Crimes Act 1900 (NSW), is liable to a maximum penalty of five years’ imprisonment, unless otherwise provided by law.

Although imprisonment is uncommon and fines are the most frequently imposed penalty, a conviction for larceny can have lasting consequences for employment and travel. With appropriate legal advice, it may be possible to seek a non-conviction outcome, such as a Section 10 dismissal or Conditional Release Order, depending on the circumstances of the offence and the offender.

Any person who, by any deception, dishonestly obtains property belonging to another or obtains a financial advantage or causes any financial disadvantage, is guilty of fraud. Fraud carries a maximum penalty of 10 years’ imprisonment and is considered a serious offence.

To be found guilty of fraud, the prosecution must prove beyond reasonable doubt that when deceiving the victim and obtaining the property, the accused acted dishonestly. Fraud offences in New South Wales include:

1. Dishonestly obtain property by deception,
2. Dishonestly obtain financial disadvantage by deception,
3. Intention to Defraud by Destroying or Concealing Accounting Records,
4. Intention to Defraud by False of Misleading Statement, and
5. Intention to Deceive Members or Creditors by False or Misleading Statement of Officer of Organisation.

Part 4 of the Crimes Act (NSW) contains a number of break and enter offences:

1. Enter a dwelling house with intent to commit a serious indictable offence,
2. Break, enter and commit a serious indictable offence,
3. Break and enter with intent to commit a serious indictable offence,
4. Break, enter and assault with intent to murder.

A ‘serious indictable offence’ is an offence that carries 5 years imprisonment or more as a maximum penalty.

If the offence is committed in ‘circumstances of aggravation’ the maximum penalty for this offence is 20 years imprisonment. ‘Circumstances of aggravation’ include having a weapon, being in the company of another person or knowing that there is someone else inside the house.

Examples of break and enter offences include:

1. Breaking into someone’s home and stealing their property,
2. Breaking into a worksite and taking tools,
3. Breaking into storage cages of unit complexes and stealing personal items.

To be found guilty of this offence, the police must prove the following, beyond reasonable doubt:

1. The accused broke and entered the premises, and
2. Having entered the premises, the accused committed a serious indictable offence (stealing for example).

There is no definition of “breaking” in the Crimes Act 1900. In Stanford v R (2007), the court held that there is no “breaking” involved in further opening an already opened window. However, to open a closed but unlocked door could amount to “breaking” since the common law definition of breaking includes pushing open a closed but secured door or opening a closed but unfastened window: DPP (NSW) v Trudgett [2013].

A person who has lawful authority to enter the premises, such as by being a leaseholder, will not be guilty of “breaking and entering”, even if they use force to gain entry. The Crown must prove beyond reasonable doubt the accused had no lawful authority to enter the premises.

‘Goods in custody’ is a colloquial term for the offence of ‘persons unlawfully in possession of property’. It is a criminal offence under section 61 Crimes Act 1900 (NSW) and reads as follows:

Any person who

1. has anything in his or her custody,
2. has anything in the custody of another person,
3. has anything in or on premises, whether belonging to or occupied by himself or herself or not, or whether that thing is there for his or her own use or the use of another, or
4. gives custody of anything to a person who is not lawfully entitled to possession of the thing,

which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, is liable on conviction before the Local Court.

For this offence, police are not required to prove that the item was in fact stolen or unlawfully obtained. It is sufficient for the prosecution to establish that there were reasonable grounds to suspect the item was stolen or unlawfully obtained.

The Crimes Act does not define ‘custody’ for the purposes of section 527C. The decision of Ex parte McPherson (1933) 50 WN 25 is authority for the proposition that custody is “the immediate de facto control or charge of the article in question.”

Legal defences for ‘goods in custody’ include:

Personal custody

To be guilty of goods in custody, the police must be able to prove that you had custody of the thing in question at the time of arrest. The leading authority for this is the decision of R v English (1989) whereby Chief Justice Gleeson held that the offence of goods in custody retains its historical connotation of being caught red-handed.

Disputing reasonable suspicion

Reasonable suspicion must attach to the goods and not the person or persons the subject of police inquiry. The Court must be satisfied beyond reasonable doubt that ‘the thing in question’ may reasonably be suspected of being stolen or otherwise unlawfully obtained. Previous cases that consider the this defence include O’Sullivan v Tregaskis [1948] SASR 12 and Yeo v Capper [1964] SASR 1.