s391 Criminal Code 1899 makes it an offence to steal property.
What the prosecution must prove.
The prosecution must prove beyond reasonable doubt:
1. The property is owned by the person named as owner in the charge.
2. The property was taken without the consent of the owner.
3. The taking was with a fraudulent intent.
What it means.
A fraudulent intent is established if the evidence proves beyond reasonable doubt:
• An intention to permanently deprive the owner of their property.
• An intention to use the property as a pledge or security. This applies to pawning property even if the intention is to rcover and return the property.
The defendant must have actually moved or dealt with the property by some physical act without the owner’s consent.
The available defences.
Claim of Right
An act in relation to property is not fraudulent if a person does not know the identity of the owner and believes on reasonable grounds that the owner cannot be discovered through reasonable steps. An example would be a $50.00 note found by a cleaner after a stadium concert.
The usual penalties.
The maximum penalty for the criminal offence of Stealing is 5 years imprisonment.
The maximum penalty is increased to 10 years imprisonment if it is charged and proved beyond reasonable doubt that the offence was committed:
• From the person of a complainant.
• From within a dwelling.
• From within a vehicle.
• As the director of a company.
• As an employee against an employer.
• As a public servant.
• In relation to property held on trust.
• In relation to property worth more than $5,000.00.
• As a tenant in relation to property worth more than $1,000.00.
The maximum penalty is increased to 14 years imprisonment if the property stolen is a vehicle or firearm.
The maximum penalty is a poor numerical indicator of sentences usually imposed. It plays a role in setting the seriousness of an offence. The maximum penalty is hardly ever imposed.
Penalties for the criminal offence of Stealing vary widely from bonds and fines to lengthy sentences of imprisonment for offences involving large sums of money. The courts are particularly harsh on employees who steal property during the course of their employment.