Theft – Commonwealth
– section 131.1 of the Commonwealth Criminal Code 1995
This charge is laid when a person dishonestly takes property belonging to a Commonwealth entity with the intention of permanently depriving that Commonwealth entity of said property.
This offence is ordinarily heard in the Magistrates’ Court. This offence may also be heard in the higher courts.
Examples of Theft – Commonwealth
- A person steals artwork from the National Museum of Australia with the intention of appropriating the artwork for themselves.
- A person steals stationary from the Department of Agriculture and Water Resources with the intention of appropriating the stationary for themselves.
- A person steals weather gauging equipment from the Bureau of Meteorology with the intention of appropriating the stationary for themselves.
What is the legal definition of Theft – Commonwealth?
- A person commits an offence if:
- the person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property; and
- the property belongs to a Commonwealth entity.
- For the purposes of this Code, an offence against subsection (1) is to be known as the offence of theft.
- Absolute liability applies to the paragraph (1)(b) element of the offence of theft.
- Section 15.4 (extended geographical jurisdiction–category D) applies to an offence against subsection (1).
LegislationThe relevant legislative provision for this offence is section 131.1 of Criminal Code Act 1995 (Cth) (the Act).
Elements of the offenceTo prove this offence, the prosecution must establish beyond reasonable doubt that the accused:
- Dishonestly appropriated property belonging to another;
- The property belongs to a Commonwealth entity; and
- The accused intended to permanently deprive the Commonwealth entity of the property.
To establish the first element of this offence, the prosecution must prove that the accused dishonestly appropriated property belonging to another.
‘Dishonest’ means dishonest according to the standards of ordinary people.6 This means that whether the appropriation of property is dishonest is evaluated objectively, not with reference to the accused’s state of the mind.
The appropriation of property will not be dishonest if the accused believes that they cannot discover the owner of the property by taking reasonable steps.7
‘Appropriation of property’ means any assumption of rights of ownership, possession or control of the property with the consent of the owner.8 This can include circumstances where a person legitimately obtains property belonging to another and dishonestly appropriates the property at a later time, for example entering into a rental agreement to hire the property and then retaining the property beyond the expiration of the agreement.
Element 2: The property belongs to a Commonwealth entity
For the prosecution to successfully make out the second element of the offence, the property must belong to a Commonwealth entity.
‘Commonwealth entity’ means the Commonwealth or a Commonwealth authority.9 Examples of Commonwealth entities include the Attorney-General’s Department, the Murray Darling Basic Authority and the Australian Financial Security Authority.
‘Absolute liability’ applies to this element of the offence.10 This means that it is irrelevant whether the accused knows if the property belongs to a Commonwealth entity.
Element 3: The accused intended to permanently deprive the Commonwealth entity of the property
“Did the property belong to a Commonwealth entity?”
For the prosecution to prove the final element of the offence they must establish that the accused intended to permanently deprive the Commonwealth entity of the property. The prosecution will establish this if they can prove that the Commonwealth entity did not mean to lose the property itself; and the accused intended to treat the property as their own regardless of the Commonwealth entity’s ownership rights.11
Defences to this charge ordinarily turn on some element of the offence not being made out. These include:
- The accused did not dishonestly take property;
- The property does not belong to a Commonwealth entity;
- The accused did not intend to permanently deprive the Commonwealth entity of the property?
Questions in cases like this
- Has a person dishonestly taken property?
- Does the property belong to a Commonwealth entity?
- Does the person intend to permanently deprive the Commonwealth entity of the property?
Sentencing in the higher courtsIn the higher courts of Victoria, 18 charges of Theft – Commonwealth were heard from 1 July 2011 to 30 June 2016. These charges resulted mostly in partially suspended sentences (44.4%) and wholly suspended sentences (44.4%). Community Correction Order (5.6%) and other (5.6%) sentencing forms were also imposed.12
Other important resources
- VCC summaries – Commonwealth dishonesty offences: Sentencing decisions from 1 January 2016 to 30 November 2017, arranged by severity of total effective sentence
- For examples of Commonwealth entities see Flipchart of PGPA Act Commonwealth entities and companies.
Case studies related to Theft – CommonwealthAlthough we have no case studies for Theft – Commonwealth, we have a number of case studies for the comparable Victorian offence of Theft.
 Criminal Code Act 1995 7.3
 Criminal Code Act 1995 9.2
 Criminal Code Act 1995 10.2
 Criminal Code Act 1995 10.3
 Criminal Code Act 1995 131.1
 Criminal Code Act 130.3
 Criminal Code Act 131.2
 Criminal Code Act 131.3
 Criminal Code Act, Dictionary
 Criminal Code Act 131.1(3)
 Criminal Code Act 130.10
 SACStat Higher Courts – Criminal Code Act 1995 (Cth) : s 131.1(1) – theft (property of Commonwealth entity) <https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_CRIMCODE_131_1_1.html>.