Larceny is an offence under section 117 of the Crimes Act 1900 (NSW). The maximum penalty for larceny depends on the value of the property in issue. This is the offence you will generally be charged with if you are alleged to have engaged in ‘shoplifting’.
Police also have the discretion to issue you with a penalty notice with a fine of $300 for a larceny offence if the value of the goods stolen is less than $300.
What constitutes larceny?
A larceny is the act of taking and moving the property of another person without their consent, with the intent of permanently depriving the owner of the property. It is the most basic and the least serious of the offences that encompass theft offences.
As soon as you commit a larceny by stealing from the person or by breaking into private property, you expose yourself to much more serious charges.
What the Police must prove
To be found guilty of an offence of Larceny in NSW the police must prove the following elements:
- There is property that belongs to someone other than you;
- The property must be taken and carried away by you; and
- The taking of the property must be without the consent of the owner of the property
In addition, the police must prove the following ‘mental elements’:
- That the property was taken by you with the intention of permanently depriving the owner of the property;
- That the property must be taken without you having an claim of right made in good faith (without the honest belief that you had a legal right to take the property); and
- That the property was taken by you dishonestly.
Please note however that section 118 of the Crimes Act 1900 (NSW) excludes a defence of taking the property with the intention of later returning it.
An example of where these elements would be satisfied is when someone has been found ‘shoplifting’. If someone takes a chocolate bar from a supermarket without paying for it, that chocolate bar belongs to the supermarket, it has been taken and carried away by the shoplifter and there has been no consent by the supermarket (which is implied by the nature of the business of a supermarket).
In addition, there could generally be no suggestion, unless there was some additional evidence, that the shoplifter did not intend to permanently deprive the supermarket of the chocolate bar, that the shoplifter honestly believed they had a legal right to take the chocolate bar or that the taking of the chocolate bar was not dishonest.
Possible defences for larceny
It is always a defence where you believe that an essential element of an offence can not be proved by the prosecution some specific defences to this type of offence include:
Claim of right made in good faith:
The police must prove that the taking of the property in question was committed without you having a claim of right made in good faith to the property. Therefore, if there is available an argument on the police’s evidence that you had a genuine belief that you were legally entitled to take the property or there is some evidence you can adduce of this genuine belief, then it may be in your interests to plead not guilty. However, you should note that you must have a genuine belief of legal entitlement to take the property in question, and not a moral entitlement. A legal entitlement would arise if you honestly believe you have a right of ownership to the property.
The property was not taken dishonestly:
Whether property has been taken dishonestly is a matter for the tribunal to determine, applying the current standards of ordinary, decent people. Therefore, an argument based on the honesty or dishonesty of your actions in taking an item will heavily depend on the circumstances of your particular case. While the fact that you intended to return the property can not on its own support an acquittal, if it colours your offending conduct with the appearance of honesty, then you may have an arguable case for an acquittal.
However, please note that if it is determined that you took the property honestly, but there is evidence that you fraudulently retained the property for your own use, you can be convicted of the alternate offence of Fraudulent Appropriation pursuant to section 124 of the Crimes Act 1900 (NSW).
The defence of necessity is a defence that is available to a number of offences. Necessity can be raised when a person commits an offence in circumstances that make committing the offence necessary to avoid serious consequences.
For the defence of necessity it must be found that the person committed the criminal offence:
- In order to to avoid certain consequences which would have caused ‘irreparable evil’ to themself or another.
- The accused honestly and reasonably believed that they were in a situation of imminent peril and it was necessary for him or her to commit the acts that constituted the offence, and
- The acts to avoid the peril must not have been disproportionate to the threat of danger.
The accused must raise the defence of necessity but once it is raised the prosecution must disprove the defence beyond a reasonable doubt.
It is a defence to many offences where the offending conduct was done due to Duress. Duress is where an offender is placed in a situation where they have no choice other than to commit an offence due to serious threats to either them or their family.
The defence of duress involves 3 critical elements. A person will not be held criminally responsible for an offence if the offence was committed:
- Because of threats of death or really serious injury to him or herself or to their family, and
- Those threats being of such a nature that a person:
- Of ordinary firmness and strength of will
- Of the same maturity and sex of the accused, and
- In the accused’s position,
- Would have given in to the threats and committed the offence
When looking at the first element, the question is whether a threat was made, and if so, what led the accused to believe the threat would be carried out. These threats may be made expressly or impliedly. It does not matter if there is no real threat to the person or family. What matters is whether the person held a genuine belief that there is an imminent threat of death or serious injury to his or her self or family if he or she did not do what was demanded of them.
The second element is an assessment of the circumstances surrounding the threats. When considering this element the court will have regard to, among others, the nature of the threat, the person making the threat, the accused’s knowledge of the person making the threat and all circumstances which may affect a reasonable person’s reaction to the threats.
Essentially the test for this second element is if you place an ordinary and reasonable person of the same maturity and sex of the accused in the exact same set of circumstances posed to the accused, would that reasonable person succumb to those threats and commit the offence.
When assessing the third element, the question is whether there are any other alternatives other than committing the offence. A person will not be able to raise the defence of duress even if they held a reasonable belief that the threats would be carried out if he or she could have avoided the threats by alternative means other than committing the offence.
If the prosecution disproves any of the three elements listed above then that the defence will not be made out. If they are unable to disprove any of the elements then offender should be found not guilty.
Penalties for larceny in NSW
Penalties for Larceny will be largely dependant on the circumstances of the larceny and really can encompass the full range of options available to the court, even for first offenders. The most serious larcenies often result in a term of imprisonment.
Police also have the discretion to issue you with a penalty notice with a fine of $300 for a larceny offence if the value of the goods alleged to have been stolen is less than $300. If you choose to pay the penalty notice, you will not have to go to court and there will be no conviction recorded against you.
It is open to the court to consider any of the following:
Conditional Release Order
Conditional Release Orders (CRO) are often used to deal with first time offenders and less serious offences where the offender is unlikely to present a risk to the community.
A CRO is an order of the court that you are to be of good behaviour (not commit any other offences) for a specific period of time.
CROs can include conditions such as drug and alcohol abstention, requirements to attend programs, non-association requirements or place restrictions where appropriate. CROs can also have a supervision condition. Courts have discretion to not impose a conviction on a CRO, if they consider it appropriate. CROs can be for a maximum period of 2 years.
The CRO acts as a warning and provides the option to divert less serious offenders out of the criminal justice system, freeing up resources to deal with the offenders who cause the greatest concern to the community. If an offender commits any further offences while on a CRO, subsequent penalties may be more severe.
Community Corrections Order
Community Correction Order’s (CCO) are used to punish offenders for offences that do not warrant imprisonment or an Intensive Corrections Order, but are too serious to be dealt with by a fine or lower level penalty.
CCO’s are a flexible sentence that the court can tailor to reflect the nature of the offender and the offence. The court can select from the range of conditions, such as supervision by Community Corrections Officers, community service work (up to 500 hours) and curfews, to hold offenders to account and reduce their risk of reoffending. CCOs can be imposed for a period of up to three years.
Intensive Corrections Order
An Intensive Corrections Order (ICO) is a custodial sentence that the court decides can be served in the community. Community safety is the court’s paramount consideration when making this decision. ICO’s can be for a maximum of 2 years for single offences and up to 3 years where there are multiple offences.
Supervision is a mandatory condition of an ICO. Further the Courts must impose at least one additional condition. Conditions that can be included in an ICO are: home detention, electronic monitoring, curfews, community service work (up to 750 hours), alcohol/drug bans, place restrictions, or non-association requirements. Offenders may also be required to participate in programs that target the causes of their behaviour.
The ICO is the most serious sentence that an offender can serve in the community. ICOs are not be available for offenders who have been convicted of murder, manslaughter, sexual assault, any sexual offence against a child, offences involving discharge of a firearm, terrorism offences, breaches of serious crime prevention orders, or breaches of public safety orders.
A person convicted of a domestic violence offence can only be sentenced to an ICO if the court is satisfied that the victim or likely co-residents can be adequately protected. For example, a domestic violence offender is not eligible for an ICO with a home detention condition if they are intending to reside with the victim.
Full Time imprisonment
Full Time imprisonment is the most serious penalty a court can impose. The sentence involves a period of time that will be spent inside an NSW correctional centre. When imposing a full time custodial sentence in most circumstances the court will apply a Non-Parole period, this is the minimum time that must be spent in a correctional centre. After the expiration of the Non-Parole period you will be eligible for release with the remainder of the sentence to be spent in the community on parole.
Book a Free Consultation for a larceny charge
Our Lawyers at First Offence Legal have represented many clients who have been charged with larceny. The court regards all larceny matters as serious, as one of the main considerations in sentencing offenders here is deterring others from stealing property belonging to others. You must not assume that because it is your first time being caught shoplifting that the court will not impose a conviction. We can assist you in successfully defending the matter in court or help you get the best result possible on sentence.
If you or anyone you know has been charged with a larceny offence, you should contact First Offence Legal and book a free no obligation consultation. Remember to always make First Offence Legal your first defence!