Theft

For many people theft might conjure an image of somebody taking something from a store, stealing a car or taking someone else’s bag when they are not looking. While these may be examples of theft and ways the offence is often carried out, theft can be a complex offence and can occur in much less obvious circumstances.
 

Theft Video

For example:

  • Collecting and then selling lost golf balls from a private golf course can amount to theft from the golf course.1
  • Garbage men helping themselves to garbage put out for collection can amount to theft from the property of the householder.2
The elements of Theft

Theft is created by s 74 of the Crimes Act 1958 (Vic) (“the Act”), however it is defined in s 73 of the Act. Pursuant to that definition, theft has the following three elements:

  1. The accused appropriated property belonging to another;
  2. The accused did so with the intention of permanently depriving the other of the property; and
  3. The accused acted dishonestly.

The prosecution is required to prove each of these three elements beyond reasonable doubt to successfully convict an accused person of theft. The prosecution must also prove that each of these three elements existed at the same time.3

Element 1: The accused appropriated property belonging to another
To satisfy this element the prosecution must prove: (i) that the accused appropriated something; (ii) that the thing appropriated was property; and (iii) that the property belonged to another person.

(i) The accused appropriated something
An accused has ‘appropriated’ property if they have assumed any of the rights of the owner4 or adversely interfered with or usurped the owner’s rights in some way.5 The rights of the owner will depend on the property and the particular circumstances of ownership, however they generally include the right to control the property and the right to possess it. Depending on the circumstances, ‘appropriation’ usually includes taking, using, damaging, extinguishing, lending, retaining or offering to sell another person’s property. An accused will not have ‘appropriated’ property if he or she acted with the owner’s consent6 provided that persons was not obtained by fraud or deception.7

If an accused person found or came across the property innocently, if you found a necklace on the footpath for example, but then kept it or dealt with it as an owner, you will have appropriated it.8

(ii) The thing appropriated was property
While s 71(1) of the Act says that property includes ‘money and all other property real or personal including things in action and other intangible property’,9 exactly what the law considers to be property can be complex.

(iii) That property belonged to another person
The appropriated property must have ‘belonged to another’.10 Property ‘belongs’ to anyone who has possession or control of it or who has any other proprietary right or interest in it.11 It does not matter if an accused has property rights in the property if someone else (an accused’s partner for example) also has property rights in it.12

Theft of PropertyElement 2: The accused did so with the intention of permanently depriving the other of the property
The second element of theft requires the accused to have intended to permanently deprive the owner of the property at the time he or she appropriated it.13 If the accused only had an intention to temporarily deprive the owner of his or her property, then this element is not satisfied and the accused must be found not guilty.

An accused is deemed to have an intention to permanently deprive a person of property, despite the fact that he or she did not actually have that intention when he or she appropriated the property, if he or she intended to treat the property as his or her to dispose of regardless of the owner’s rights.14 However an accused will only be deemed to have an intention to permanently deprive the owner of the property if the borrowing or lending was for a period, or in circumstances, which made it equivalent to an outright taking or disposal.15

Motor vehicles
Proof that a person used a motor vehicle, in any manner, without the consent of the owner or lawful possessor is conclusive evidence that the person intended to permanently deprive the owner of that property.16

Element 3: The accused acted dishonestly
The accused’s appropriation of property belonging to another will only be theft if it is ‘dishonest’.17 In relation to theft, dishonesty means that the accused acted without any claim of legal right.18 Pursuant to s 73(2) of the Act, a person’s appropriation of another’s property is not dishonest if the person believed that:

  1. he or she had a legal right to deprive the owner of the property;
  2. the owner would have consented to the appropriation if he or she had known of it and the circumstances surrounding it; or
  3. the owner could not be discovered by taking reasonable steps. This applies when you might have found property or received property by mistake.

In a trial, the questions a judge will ask a jury to consider are:

  1. Did the accused appropriate property belonging to another person?
    The jury will be asked to consider whether the accused took the property, assumed the rights the owner or interfered with the rights of the owner in the way alleged by the prosecution. The jury will also be asked to consider whether the accused did this without consent.
    If yes, then the jury will be asked to consider question 2
    If no, then the accused is not guilty of theft
  2. Did the accused intend to permanently deprive another person of that property?
    The jury will be asked to consider whether the accused intended that the owner would never get the property back.
    If yes, then the jury will be asked to consider question 3
    If no, then the accused is not guilty of theft
  3. Did the accused appropriate the property dishonestly?
    The jury will be asked whether the prosecution has proved that the accused did not believe that he or she had a legal right to obtain property.
    If yes, then the accused is guilty of theft
    If no, then the accused is not guilty of theft

Theft Criminal Lawyers

Defences

Aside from general defences which may apply such as mistaken identity, theft can raise complex legal issues which can give rise to defences such as:

  • Was the property actually appropriated by the accused?
  • Was the ‘property’ really property at all?
  • Did the accused take the property with the intention of permanently depriving the other person of that property?
  • Did the accused believe he had a legal right to the property?
Penalty and court that deals with this charge

While theft is an indictable offence punishable by up to 10 years imprisonment19 the offence may be heard summarily. Most charges of theft are heard in the Magistrates’ Court.

Sentencing in the Magistrates’ Courts

Various cases of Theft were also heard in Victorian Magistrates’ Courts from 1 July 2016 to 30 June 2019:

Theft From Motor Vehicle
Number of Cases: 1,920 (2,941 charges)

  • Imprisonment – 51.8 %
  • Community Correction Order – 23.1 %
  • Fine – 11.8 %
  • Other – 3.0 %
  • Youth Justice Centre Order – 1.1 %
  • Wholly Suspended Sentence – 0.4 %
  • Partially Suspended Sentence – 0.2 %
Most Commonly Imposed Prison Term: < 3 months (26.9% of those who received prison terms)
Longest Prison Term: 36+ months (1.0%)
Most Commonly Imposed CCO Term: 12 < 18 months (62.9% of those who received CCOs, non-aggregate)
Longest CCO Term Imposed: 24+ months (5.2%, non-aggregate)20

 
Theft From a Shop
Number of Cases: 14,365 (30,185 charges)

  • Imprisonment – 35.3 %
  • Fine – 22.6 %
  • Community Correction Order – 20.6 %
  • Adjourned Undertaking/Discharge/Dismissal – 20.2 %
  • Other – 0.8 %
  • Youth Justice Centre Order – 0.4 %
  • Wholly Suspended Sentence – 0.1 %
Most Commonly Imposed Prison Term: < 3 months (47.8% of those who received prison terms)
Longest Prison Term: 36+ months (0.5%)
Most Commonly Imposed Fine: $500 < $1,000 (27.6% of the charges that led to aggregate fines)
Highest Fine Imposed: $5,000 < $10,000 (0.1%, aggregate)21

 
Other Theft
Number of Cases: 16,427 (34,718 charges)

  • Imprisonment – 44.0 %
  • Community Correction Order – 25.5 %
  • Fine – 14.9 %
  • Other – 1.6 %
  • Youth Justice Centre Order – 0.6 %
  • Wholly Suspended Sentence – 0.2 %
  • Partially Suspended Sentence – 0.1 %
Most Commonly Imposed Prison Term: < 3 months (31.9% of those who received prison terms)
Longest Prison Term: 36+ months (0.6%)
Most Commonly Imposed CCO Term: 12 < 18 months (65.1% of the charges that led to CCOs, non-aggregate)
Longest CCO Term Imposed: 24+ months (7.9%, non-aggregate)22

 
Please note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore all offences committed on or after 1 September 2013 will not have this available as a sentencing option.23
 
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Sentencing in the higher courts

From 1 July 2013 to 30 June 2018, there were various cases of Theft that were heard in the higher courts of Victoria:
 
Theft (Other Than a Motor Vehicle)
Number of Cases: 151 (3,361 charges)

  • Imprisonment – 67.6%
  • Community Correction Order – 12.6%
  • Wholly Suspended Sentence – 10.6%
  • Partially Suspended Sentence – 6.6%
  • Fine – 1.3%
Most Commonly Imposed Prison Term: 3 < 4 years (23.5% of those who received prison terms)
Longest Prison Term: 8 < 9 years (1%)
Most Commonly Imposed CCO Term: 3 < 4 years (31.6% of those who received CCOs)
Longest CCO Term Imposed: 5+ years (3.7%)24

 
Theft of a Motor Vehicle
Number of Charges: 51

  • Imprisonment – 72.6%
  • Community Correction Order – 13.7%
  • Youth Justice Centre Order – 13.7%
Most Commonly Imposed Prison Term: 0 < 1 year (67.6% of those who received prison terms)
Longest Prison Term: 3 < 4 years (2.7%)25

 
Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.26

Case Examples from our firm

 



[1] Hibbert v McKiernan [1948] 2 KB 142
[2] Williams v Phillips (1957) 41 Cr App R 5
[3] R v Greenberg [1972] Crim LR 331.
[4] Section 73(4) of the Crimes Act 1958 (Vic).
[5] Roffel v R [1985] VR 511.
[6] Roffel v R [1985] VR 511.
[7] R v Gomez [1993] VR 685.
[8] See section 73(4) Crimes Act 1958 (Vic).
[9] Section 71(1) Crimes Act 1958 (Vic).
[10] Section 72(1) Crimes Act 1958 (Vic).
[11] Section 71(2) Crimes Act 1958 (Vic).
[12] R v Bonner [1970] WLR 838.
[13] R v Easom [1971] 2 QB 315; Sharp v McCormick [1986] VR 869.
[14] Section 73(12) Crimes Act 1958 (Vic).
[15] Section 73(12) Crimes Act 1958 (Vic).
[16] Section 73(14) Crimes Act 1958 (Vic).
[17] Section 72(1) Crimes Act 1958 (Vic)
[18] R v Salvo [1980] VR 401; R v Bonollo [1981] VR 633 and R v Brow [1981] VR 783.
[19] Pt. 3.1 of the Criminal Procedure Act 2009 (Vic)
[20] Sentencing Advisory Council. “SAC Statistics – Crimes Act 1958 (Vic): s 74 – theft from motor vehicle.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_74.3.html (accessed November 11, 2019).
[21] Sentencing Advisory Council. “SAC Statistics – Crimes Act 1958 (Vic): s 74 – theft from a shop.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_74.2.html (accessed November 11, 2019).
[22] Sentencing Advisory Council. “SAC Statistics – Crimes Act 1958 (Vic): s 74 – other theft.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_74.html (accessed November 11, 2019).
[23] Sentencing Advisory Council. “Abolished Sentencing Orders.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders (accessed November 11, 2019).
[24] Sentencing Advisory Council. “SACStat Higher Courts – Crimes Act 1958 (Vic): s 74 – theft (other than a motor vehicle).” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_6231_74.html (accessed November 11, 2019).
[25] Sentencing Advisory Council. “SACStat Higher Courts – Crimes Act 1958 (Vic): s 74 – theft of a motor vehicle” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_6231_74.2.html (accessed November 11, 2019).
[26] Sentencing Advisory Council. “Abolished Sentencing Orders.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders (accessed November 11, 2019).