Published by Geoff Harrison | 13 February 2024
Larceny is a common law offence against possession, not ownership. Larceny is not defined within the Crimes Act 1900 (the Act") hence, the elements or proofs of larceny arise from the common law. The penalty for larceny is , set out in s117 of the Act, with the maximum penalty being 5 years imprisonment on indictment and 2 years imprisonment in the Local Court. It is also possible for police to serve a Criminal Infringement Notice for larceny where the value of the property involved is less than $300. The fine for a Criminal Infringement Notice for larceny is $300.
In Illich v R [1987] HCA 1, Wilson and Dawson JJ summarised larceny at [10]:
At common law, larceny is committed by a person who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof. This is the definition, which was intended to be declaratory of the common law, given in s.1(1) of the Larceny Act 1916 (U.K.) which has, of course, now been repealed by the Theft Act 1968 (U.K.). What we wish to draw attention to is the fact that at common law larceny involves the taking of something without the consent of the owner who may, for this purpose, include the person in possession of the thing. For this reason it is said that there is no larceny if the circumstances would not sustain an action for trespass...Of course, if the taking is to be fraudulent, there must be the requisite intent but, given that intent, there may be a fraudulent taking of something under the Code even if the owner intentionally delivers the thing to the person said to take it.
The proofs or elements of larceny are:
The property is capable of being stolen at common law, that is, being carried away and has the slightest of value (even paper). A number of things were not capable of being stolen at common law hence, specific sections to certain types of property:
The property is in the possession of another person.
The property is taken away or moved (asportation).
The property is taken or moved without the consent of the person in possession of the property (invito domino).
The property is taken without a claim of right.
The property is taken with the intention to permanently deprive the person in possession.
The property is taken dishonestly or with animus furandi (an intention to steal)
As can be seen from the elements of larceny, it is possible to steal by finding where, at the time of moving the property, the person has the requisite dishonest intent to permanently deprive the owner of the goods and the goods have not been abandoned (see Dolby v Stanta below).
A piece of circumstantial evidence that the prosecution can rely upon is 'recent possession,' otherwise known as the 'doctrine of recent possession. ' That is, the person is in possession of the stolen goods in such short proximity to the time of theft that the person in possession must be either the thief or the receiver of the stolen goods: see relevant jury directions below.
Other Sources:
Cases:
Foster v R [1967] HCA 8 (Intention to return goods)
R v Fuge [2001] NSWCCA 208 (Claim of right - authorities reviewed at [24])
Dolby v Stanta [1995] QCA 434 (re Abandoned property)
Peters v R [1998] HCA 7 (Dishonesty cf: Weatherstone (1987) NSWCCA and R v Ghosh [1982] Q.B 1053))
R v Mahoney [2000] NSWCCA 256 (recent possession)
________________________________________________________________________________
Extracted Legislation:
CRIMES ACT 1900 - SECT 116
All larcenies to be of same nature
Every larceny, whatever the value of the property stolen, shall be deemed to be of the same nature, and shall be subject to the same incidents in all respects, as grand larceny was before the passing of the Act seventh and eighth George the Fourth, chapter twenty-nine.
CRIMES ACT 1900 - SECT 117
Punishment for larceny
Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years.
CRIMES ACT 1900 - SECT 118
Intent to return property no defence
Where, on the trial of a person for larceny, it appears that the accused appropriated the property in question to the accused's own use, or for the accused's own benefit, or that of another, but intended eventually to restore the same, or in the case of money to return an equivalent amount, such person shall not by reason only thereof be entitled to acquittal.
CRIMES ACT 1900 - SECT 119
Verdict where several takings proved
Where, on the trial of a person for larceny, it appears that the property alleged in any count to have been stolen at one time, was taken at different times, the prosecutor shall not be required to elect upon which taking the prosecutor will proceed, unless the Judge so orders--
Provided always that evidence shall not in any such case be given of any taking which occurred more than six months in point of time from any other of such takings.
CRIMINAL PROCEDURE ACT 1986 - SECT 336
Penalty notice offences
(1) The regulations may prescribe an offence under any Act or statutory rule made under an Act as a penalty notice offence for the purposes of penalty notices served by police officers under this Part.
(2) Any such regulation may specify the offence or refer to the provision creating the offence.
CRIMINAL PROCEDURE ACT 1986 - SECT 337
Penalties
(1) The regulations may--
(a) prescribe the penalty payable for a penalty notice offence dealt with under this Part, and
(b) prescribe different penalties for different offences or classes of offences, and
(c) prescribe different penalties for the same penalty notice offence.
(2) The amount of a penalty prescribed for a penalty notice offence is not to exceed the maximum amount of penalty that could be imposed for the offence by a court.
Comments