What is the Offence of Larceny in New South Wales?

by Ugur Nedim & Sonia Hickey
Salmon

Five people will face Campbelltown Local Court over the alleged theft of salmon from Huon Aquaculture Ingleburn, a fish processing plant in Sydney’s south-west.

The group, consisting of three men and two women, were all employees of the business and have subsequently been terminated from their positions.

Police were called in after an internal investigation at the plant revealed a reduction in output of about 600 kilograms of salmon per day.

Police allege the group graded the premium salmon as waste, then removed it from the premises and transported it for sale or trade.

It’s alleged the group stole up to 250 tonnes of salmon valued at more than $4 million.

Each of the defendants has been charged with stealing property and larceny.

What is the offence of larceny?

Larceny is an offence under section 117 of the Crimes Act 1900 which carries a maximum penalty of 5 years in prison.

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.

Having a ‘claim of right’ is a defence to the charge. This is where you genuinely believed you were legally entitled to the entirety of the property.

Duress and necessity are also defences to the charge.

Property offences are in decline

Over the past few years, offences against property have been in decline across New South Wales.

At the end of last year, the NSW Bureau of Crime Statistics and Research (BOCSAR) reported that crime rates for the following offences had shown a downward trend in the 24 months to September 2020:

Robbery without a weapon – down 17.1%; Motor vehicle theft – down 11.0%; Steal from motor vehicle – down 21.9%; Steal from retail store – down 20.6%; Steal from dwelling – down 8.7%

Steal from person – down 36.6%.

However, the national trend appears to be the exact opposite with the Australian Bureau of Statistics (ABS) reporting in 2019 that the number of reported victims of robbery increased for the fourth consecutive year to 11,775 victims.

Theft in the workplace

The figures do not cover what is known an ‘employee theft’ or ‘theft in the workplace’, which in the law is the offence of larceny by a clerk or servant and is contained in section 156 of the Crimes Act 1900.

The offence carries a maximum penalty of 10 years in prison.

To establish that 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 property 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.

Section 155 of the Crimes Act defines a clerk or servant as: ‘Any person employed for any purpose regardless of the position’s duration’

Examples of larceny by clerk or servant may 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, which means you genuinely believed you were legally entitled to it.

Duress and necessity are also defences to the charge.

In 2019, Australian Federal Police statistics suggested that employee theft costs about $1.5 billion each year.

Workplace theft can amount to serious misconduct

The Fair Work Act provides that theft by an employee can amount to serious misconduct.

Under the National Employment Standards, if an employee commits serious misconduct, the employer can terminate his or her employment without notice.

This means the employee is not entitled to receive any payment in lieu of notice or a redundancy payment. It may also affect the employee’s long service leave entitlements, but not their accrued annual leave entitlements.

If you are an employer and you suspect an employee of theft, then you need to proceed with caution because there can be serious consequences if you make allegations or terminate an employment contract without solid proof.

Charged with larceny?

If you are going to court over an allegation of larceny, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free conference with an experienced defence lawyer who will advise you of your options and the best way forward, and fight for the optimal result.

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Authors

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®.

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.

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