The Law, Defences and Penalties for Larceny as a Clerk or Servant in NSW

by Ugur Nedim

It has been alleged that a bank employee in the US city of Charlotte, North Carolina stole US$88,000 (approx. AUD$128,000) from the bank’s vault between July and August, 2019, and flaunted his new-found wealth on several social media posts.

Arlando Henderson – who goes by the name of AceeyFoez on social media – was employed by Wells Fargo bank in April 2019.

Court papers allege that the aspiring rapper started to steal cash from the vault a little over two months after commencing his employment, beginning with thefts of $200 and $446 before progressing to sums in the thousands.

Henderson, who was authorised to access the vault, allegedly covered his tracks by creating fraudulent deposit slips, making false entries and destroying records – making it appear the stolen sums were accounted for.

He is reported to have deposited some of the funds into his own bank account, kept some of the cash for himself and used $20,000 as a deposit on a Mercedes-Benz motor vehicle.

What allegedly brought Henderson unstuck were several social media posts in which he could be seen flaunting his cash and new car.

One of those posts is reported to have contained the caption, “I make it look easy but this shyt really a process”.

He has been charged with a range of offences, including financial institution fraud, theft and embezzlement.

The offence of larceny by clerks or servants in NSW

Larceny by a clerk or servant is an offence under section 156 of the Crimes Act 1900 (NSW), which carries a maximum penalty of 10 years in prison if it finalised in the District Court, or 2 years if the case remains in the Local Court.

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

  1. You took and carried away the property,
  2. The property belonged to another,
  3. You did not have the owner’s consent, and
  4. You were a clerk or servant of the owner.

The prosecution will also need to prove that at the time of the taking:

  1. You intended to permanently deprive the owner of the property, and
  2. Your actions were dishonest.

You must be found not guilty if the prosecution is unable to prove each of those matters

Section 155 of the Act defines a clerk or servant as:

“Every person employed for any purpose, as, or in the capacity of, a clerk, or servant, or as a collector of moneys, although temporarily only, or employed also by other persons, or employed to pay as well as receive moneys, or although the person had no authority from his or her employer to receive money, or other property, on his or her account, shall be deemed a clerk, or servant.”

Examples of larceny by clerk or servant include:

  1. Taking money from your employer’s cash register,
  2. Taking computers, stationery or other items owned by your employer, or
  3. Taking stock from your employer’s premises.

A defence to the charge is having a ‘claim of right’ over the property.

Duress and necessity are also defences to the charge.

What is a claim of right defence?

Claim of right is a defence available to offences which contain the elements of larceny.

It is essentially where you took the property because you genuinely believed you were legally entitled to it.

The authorities relating to claim of right were reviewed in the case of R v Fuge (2001) 123 A Crim R 310 at 314–315, which outlined the following principles:

  1. The claim of right must involve a belief as to the right to the property or money in the hands of another.
  2. The claim must be genuinely held — whether it was well founded in fact or law or not.
  3. While the belief does not have to be reasonable, a colourable pretence is insufficient.
  4. The belief must be one of a legal entitlement to the property and not simply a moral entitlement.
  5. The existence of such a claim, when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms — the relevant issue being whether the accused had a genuine belief in a legal right to the property rather than a belief in a legal right to employ the means in question to recover it.
  6. The claim of right is not confined to the specific property or banknotes which were once held by the claimant, but can also extend to cases where what is taken is their equivalent in value, although that may be qualified when, for example, the property is taken ostensibly under a claim of right to hold them by way of safekeeping, or as security for a loan, yet the actual intention was to sell them.
  7. The claim of right must, however, extend to the entirety of the property or money taken. Such a claim does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fideclaim attaches.
  8. In the case of an offender charged as an accessory, what is relevant is the existence of a bona fide claim in the principal offender or offenders. There can be no accessorial liability unless there has in fact been a foundational knowing of the essential facts which made what was done a crime, and unless the person who is charged as an accessory intentionally aided, abetted, counselled or procured those acts.
  9. It is for the Crown to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury.

Going to Court for Larceny by Clerk or Servant?

If you are going to court for larceny by a clerk or servant, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free first conference with an experienced criminal defence lawyer who will advise you in relation to the your specific situation – including the strengths and/or weaknesses of the prosecution case and any defences that may be available to you – and fight to achieve the optimal outcome, whether that involves pushing for the withdrawal / downgrading of charges or persuading the magistrate or judge to dismiss the case in court.

Author

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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