Stealing, Theft and Larceny Offences Across Australia

by
Information on this page was reviewed by a specialist defence lawyer before being published. Click to read more.
Theft of phone

Going to court over a property which involves dishonesty – such as larceny, theft or stealing – can be a stressful and daunting experience.

You may be uncertain as to how you should plead, what will happen in court, whether you can have the charges dropped at an early stage or thrown out of court, and even whether you will get a criminal record that can impact on your career and future generally.

But it’s important to be aware that for these offences to be established, the prosecution will need to prove several ‘essential elements’, or ingredients, beyond a reasonable doubt and also disprove to the same high standard any legal defence raised on the available evidence.

Here’s a rundown of theft, larceny and stealing laws across Australian states and territories, as well as the potential penalties and available legal defences.

What counts as theft, larceny or stealing in the Australian criminal law?

Property offences such as theft, larceny and stealing generally involve dishonestly taking physical property that belongs to another with an intent to permanently deprive that owner of the property.

These offences can be distinguished from property offences such as robbery as they do not involve violence or a threat of violence, and from fraud offences as they usually involve physical property.

Such offences include:

Current theft laws in Australia

Every State and Territory has a stand alone criminal offence for theft, there are also Federal theft offences which may apply.

 New South Wales theft laws

Under NSW criminal law, the offence of larceny is outlined under section 117 of the Crimes Act 1900. The offence is sometimes referred to as ‘theft’ or ‘stealing’; although the Crimes Act contains several specific offences of stealing.

To establish a larceny, the prosecution must prove the following ‘elements’:

  1. That you took and carried away property,
  2. That the property belonged to another,
  3. That you did not have the owner’s consent,
  4. That you intended to permanently deprive the owner of the property, and
  5. That your actions were dishonest.

Federal theft laws

Theft of Property from a Commonwealth Entity is an offence under section 131.1 of the Criminal Code Act 1995 (Cth).

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You appropriated property belonging to another.
  2. You did so dishonestly.
  3. You did so with the intention of permanently depriving the other of it, and
  4. The other was a Commonwealth entity.

To ‘appropriate property’ includes assuming any rights of the other to ownership, possession, or control of the property without the other’s consent including where you innocently came by the property and later assumed any of the other’s rights by keeping or otherwise dealing with the property as its rights-holder.

To ‘appropriate property’ does not include where the other transfers to you or purports to transfer to you.

Property or any right or interest in the property and you assume the right or interest in good faith, but it later transpires that the right or interest was not legally transferred due to a defect in the transferor’s title.

‘Property’ includes but is not limited to all real property, personal property and money.

Property ‘belongs to another’ if the other possesses or controls it or has a proprietary right or interest in it other than an equitable interest arising from an agreement to transfer or grant an interest, or a constructive trust.

Your actions were ‘dishonest’ if:

  1. They were dishonest according to the standards of ordinary people, and,
  2. You knew they were dishonest according to those standards.

Your appropriation may have been dishonest even if you were willing to pay for the property unless you held it as a trustee or personal representative. Your appropriation was not dishonest if you believed the owner of the property could not be found by taking reasonable steps.

You ‘permanently deprived’ the owner of property if your intention was to treat the property as your own regardless of the other’s rights. This is the case even if your intention was not for the other to lose the property permanently and includes failing to return a borrowed item when required.

You may be found guilty if the property belongs to two or more entities if at least one of them is a Commonwealth entity.

Victoria

Under VIC criminal law, the offence of theft is outlined under section 74 of the Crimes Act 1958 (VIC).

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You appropriated property belonging to another.
  2. You did so dishonestly.
  3. You did so with the intention of permanently depriving the other of it.

Property “belongs” to anyone who has possession or control of it, or who has any other proprietary right or interest in it.

A person’s appropriation is not to be regarded as dishonest if the person believed that:

  • They had a legal right to deprive the owner of the property; or
  • The owner would have consented to the appropriation if s/he had known of it and the circumstances surrounding it; or
  • The owner could not be discovered by taking reasonable steps.

Queensland

Under Qld criminal law, the offence of stealing  is outlined under section 391of the Qld Criminal Code.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You fraudulently took anything capable of being stolen; or
  2. You fraudulently covert property to your own own use or to the use of any other person.

A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if the person does so with any of the following intents:

  • an intent to permanently deprive the owner of the thing of it;
  • an intent to permanently deprive any person who has any special property in the thing of such property;
  • an intent to use the thing as a pledge or security;
  • an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;
  • an intent to deal with it in such a manner that it can not be returned in the condition in which it was at the time of the taking or conversion;
  • in the case of money—an intent to use it at the will of the person who takes or converts it, although the person may intend to afterwards repay the amount to the owner.

Australian Capital Territory

Under ACT criminal law, the offence of theft s outlined under section 308 of the Criminal Code (ACT).

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You appropriated property belonging to another.
  2. You did so dishonestly.
  3. You did so with the intention of permanently depriving the other of it.

Appropriation means any assumption of the rights of an owner to ownership, possession or control of property, without the consent of a person to whom the property belongs, is an appropriation of the property.

‘Dishonesty’ is determined by the trier of fact, which will likely be a jury in many cases.

An intention to permanent deprive the owner includes any treatment of another person’s property as one’s own.

Northern Territory

Under NT criminal law, the offence of theft is outlined under section 217 of the NT Criminal Code.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You appropriated property belonging to another.
  2. You did so dishonestly.
  3. You did so with the intention of permanently depriving the other of it.

An appropriate includes any assumption of the rights of an owner to ownership, possession or control of property, without the consent of a person to whom the property belongs.

The appropriation will be dishonest if: “the person appropriates the property with the reasonable belief that the property is lost and the owner of the property cannot be discovered”.

An intention to permanent deprive the owner includes any treatment of another person’s property as one’s own.

South Australia

Under SA criminal law, the offence of theft is outlined under section 134 of the Criminal Law Consolidation Act 1935 (SA).

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You deal with property dishonestly.
  2. You did so without the owner’s consent.
  3. You did so with the intention of permanently depriving the other of it or to make a serious encroachment on the owner’s proprietary rights.

A person’s conduct is “dishonest” if the person acts dishonestly according to the standards of ordinary people and knows that he or she is so acting.

A person intends to make a serious encroachment on an owner’s proprietary rights if the person intends:

  •  to treat the property as his or her own to dispose of regardless of the owner’s rights; or
  • to deal with the property in a way that creates a substantial risk (of which the person is aware: that the owner will not get it back; or  that, when the owner gets it back, its value will be substantially impaired.

Western Australia

Under WA criminal law, the offence of theft  is outlined under section 398 of the WA Criminal Code.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You fraudulently took anything capable of being stolen; or
  2. You fraudulently covert property to your own own use or to the use of any other person.

A person who takes anything capable of being stolen or converts any property is deemed to do so fraudulently if he does so with any of the following intents:

  • An intent to permanently deprive the owner of the thing or property of it or any part of it;
  • An intent to permanently deprive any person who has any special property in the thing or property of such special property;
  • An intent to use the thing or property as a pledge or security;
  • An intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;
  • An intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;
  • In the case of money, an intent to use it at the will of the person who takes or converts it although he may intend to afterwards repay the amount to the owner.

Understanding theft laws in Australia

It’s important to understand the various terms which constitute elements of theft laws across Australia.

Property

Property is broadly defined under criminal law as encompassing a variety of objects of value. Section 4 of the Crimes Act 1900 (NSW) defines property as

every description of real and personal property; money, valuable securities, debts and legacies; and all deed 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…

Appropriation

‘Appropriation’ refers to the assuming the rights of the owner of the property, including any act showing that one is treating the property as one’s own. This does not necessary involve taking away property from the owner, but taking away property is good evidence of appropriation.

Dishonesty

“Dishonest” is a moral judgement of the behaviour of the accused. In most costs it means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.

Ownership

The law differentiates in a number of contexts between possession, control and ownership of property. Each of those concepts can become quite involved and complex.

Generally to steal from someone they must have some well established property rights over the thing stolen, and the person who stole it must not have a genuine claim of right over that property.

What’s the punishment for theft offences in Australia?

Punishment for NSW theft offences

The maximum penalty for committing a larceny offence under the NSW criminal law is  5 years imprisonment.

If a defendant is found guilty and convicted of larceny, they may be able to request a section 10 dismissal or conditional release order, depending on their previous history and the circumstances surrounding the offence.

Section 10 dismissals and conditional release orders are findings of guilt without a conviction, which means that the defendant won’t face penalties for their offence and it won’t appear on their criminal record.

According to 2022 NSW sentencing statistics, the average length of imprisonment for a person convicted of theft in NSW is just over 4 months.

Punishment for Federal theft offences

The maximum penalty for committing federal theft offence is 10 years imprisonment.

Punishment for Victorian theft offences

The maximum penalty for the Victorian theft offence is 10 years imprisonment.

Punishment for Queensland theft offences

The maximum penalty for the Queensland stealing offence is 5 years imprisonment generally, however penalties do differ on what has been stolen.

Punishment for Australian Capital Territory theft offences

The maximum penalty for the ACT theft offence is 10 years imprisonment.

Punishment for Northern Territory theft offences

The maximum penalty for the NT theft offence is 10 years imprisonment.

Punishment for South Australian theft offences

The maximum penalty for the SA theft offence is

  •  for a basic offence—imprisonment for 10 years;
  •  for an aggravated offence—imprisonment for 15 years.

Punishment for Western Australian theft offences

The maximum penalty for the WA theft offence is 7 years imprisonment.

Defences to Australian theft laws

The legal defences to theft and larceny include:

  • Where you had a ‘claim of right’ to the property, which is where you genuinely believed you had a legal right to all of the property,
  • Where your actions were taken under ‘duress’, which is where you were threatened or otherwise forced to undertake your actions under the threat of serious harm to you or a loved one, and your actions were reasonable in the circumstances, and
  • Where you acted in ‘necessity’, which is were your conduct was necessary to avoid serious, irreversible consequences to you or a loved one.

Where a valid legal defence is raised on the evidence, the prosecution must then prove beyond reasonable doubt that the defence does not apply.

If the prosecution is unable to do this, you must be found not guilty.

Going to court over larceny or theft?

If you have been accused of a property offence such as larceny or theft, call Sydney Criminal Lawyers on (02) 9261 8881 to arrange a conference with an experienced, specialist criminal defence lawyer who will assess your cases, advise you of your options and the best way forward, and fight for the best possible outcome.

Receive all of our articles weekly

Author

Jarryd Bartle

Jarryd Bartle is an Associate Lecturer in Criminology and Justice Studies at RMIT University and a consultant for the Bridge of Hope Innocence Initiative, which investigates claims of wrongful conviction and advocates for systemic reform to protect against miscarriages of justice.

Your Opinion Matters