The Law, Defences and Penalties for Larceny in New South Wales

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Big bird

Two men have appeared in the Adelaide Magistrate’s Court charged with the theft of a Big Bird costume worth $160,000.

The men have been accused of stealing the costume from the Sesame Street Circus Spectacular earlier this year.

The bird costume was returned a few days after being stolen with an apology letter signed by the “The Big Bird Bandits.”

The 213cm-tall yellow costume is made from ostrich feathers and was flown from New York to take part in the show which is currently touring Australia.

The note explained that the ‘Bandits’ had no idea what they were doing, that they were having a rough time and were trying to cheer themselves up with the costume.

The note said “Big Bird suffered no harm”.

The men, 22-year old Tasman Binder and 26-year old Cody Milne have been charged with theft and unlawfully being on premises and are due to appear in court again in November 2021.

The offence of larceny in New South Wales

In New South Wales, those who steal the property of another can be charged with the offence of larceny under section 117 of the Crimes Act 1900.

Larceny is the unlawful taking away of someone else’s property with the intention to permanently deprive the owner of that property.

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

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

You must be found not guilty if the prosecution is unable to establish any of these ‘essential elements’.

What are the defences to larceny?

The legal defences to 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.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.
Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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