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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, in the English case of Hibbert v McKiernan [1948] 2 KB 142, the accused collected lost golf balls on a private golf course. He would then sell the balls to golfers playing their round. He did this without permission and the golf club had warned him on prior occasions not to do this. He was eventually caught in the act by police and convicted of theft. He appealed unsuccessfully with the court finding that if a landowner showed a high degree of control over land, this demonstrated an intention to control any things lost on his land. As a trespasser, the accused could not establish a better right to the golf balls.

A further example is the case of Williams v Phillips (1957) 41 Cr App R 5. In that case a householder had put rubbish out for collection. It was held that garbage remained the property of the householder until it was collected, whereupon ownership passed to the local authority. As a result it was found that garbage men who helped themselves to such property could be convicted of theft.

Process

While theft is an indictable offence punishable by up to 10 years imprisonment,1 pursuant to Pt. 3.1 of the Criminal Procedure Act 2009 (Vic) the offence may be heard summarily and most charges of theft are heard in the Magistrates’ Court.

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.2

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 owner3 or adversely interfered with or usurped the owner’s rights in some way.4 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 consent5 provided that persons was not obtained by fraud or deception.6

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.7

Theft of Property(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’,8 exactly what the law considers to be property can be complex. Doodeward v Spence (1908) 6 CLR 406 concerned the body of a ‘two headed baby’ which had been stillborn. The attending doctor had taken the body away, preserved it in a bottle and kept it in his office. When the doctor died the body was sold as part of his personal effects to the plaintiff who exhibited it for personal gain. The defendant, a police inspector, had seized the bottle and its contents. The plaintiff brought an action against the defendant and a majority of the High Court of Australia found that he was entitled to the return of the body.

In the American case of Moore v Regents of the University of California, 793 P 2d 479 (1990), a majority of the Supreme Court of California decided that the plaintiff could establish a proprietary interest in cancerous spleen cells which had been removed by a doctor and then cultured into a very profitable ‘cell line’.

(iii) That property belonged to another person
The appropriated property must have ‘belonged to another’.9 Property ‘belongs’ to anyone who has possession or control of it or who has any other proprietary right or interest in it.10 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.11

Abandoned property
Abandonment occurs where an owner is indifferent to the future removal of the property or where the owner leaves the property ‘for anybody to take away.’12 Abandoned property cannot be stolen13 and if at the time of taking the property the accused either intended to keep it for the true owner, or believed that the property had been abandoned or that the owner cannot be found, he must be found not guilty.14 This is the case even if the accused later changes his mind and decides to appropriate the property.

However, property which is merely lost still ‘belongs’ to the owner and can be appropriated.15 In Hayes v Fries (1988) 49 SASR 184 a video in a bag was left in a taxi. The driver had then mistakenly handed it to a later passenger who took the items. The passenger was found to have taken the items and the court found that they had not been abandoned.

Element 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.16 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.17 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.18

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.19

Element 3: The accused acted dishonestly

The accused’s appropriation of property belonging to another will only be theft if it is ‘dishonest’.20 In relation to theft, dishonesty means that the accused acted without any claim of legal right.21 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.

(1) Belief in a legal right to deprive
An accused must believe they had a legal right to the property. A claim of moral right is not sufficient.22 It does not matter if the belief was based on a mistake of fact or a mistake of law, if an accused genuinely believed they had a legal right to the property then they will not have acted dishonestly.

(2) The owner would have consented to the appropriation if he or she had known of it and the circumstances surrounding it

(3) Belief that the owner cannot be discovered
A person will not have acted dishonestly if he or she appropriated the property in the belief that the person to whom the property belongs could not be discovered by taking reasonable steps.23 This applies when you might have found property or received property by mistake. As long as you genuinely believed that the owner could not be identified or located by taking reasonable steps, you will not be guilty of theft.24

The accused’s belief
The accused’s belief must have been honestly or genuinely held.25 The accused’s belief does not need to have been reasonable however the reasonableness of the accused’s belief may be taken into account when assessing whether it was genuinely held.

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?

For example, in R v Salvo [1980] VR 401 the accused was a used car salesman. A person, B, traded in a Valiant to the accused in return for a Falcon. The accused did not know that the Valiant was subject to a bill of sale to another company, C. The accused then sold the Valiant to another person, D. C then repossessed the car from D and the accused paid what was owing on the bill of sale and returned the car to C. The accused bought the Falcon back from B. Once the accused had the Falcon he cancelled the cheque he had used to pay for it. The accused admitted that he had no intention of honouring the cheque he had used to buy the falcon, however believed that he was entitled to repossess the falcon. The full court of the Supreme Court of Victoria found that the accused had not acted dishonestly because, at the time of the appropriation, the accused had believed he had a legal right to repossess the Falcon.

Sentencing in the Magistrates’ Court

The Sentencing Advisory Council has released sentencing statistics for the sentencing of thefts in the Magistrates’ Court between 1 January 2010 and 31 December 2012.

‘Other’ thefts
Shop thefts, thefts from motor vehicles, theft of a bicycle, and theft of a motor vehicle each have their own statistics so it must be presumed that ‘other’ thefts covers all other forms of theft.

The statistics are available in more specific categories of age and gender, however of the 13,584 sentenced for theft in that period, 26.4% were sentenced to a period of imprisonment, 15.6% received a wholly suspended sentence of imprisonment, 22.1% received some form of community based order, 15.3% received a fine, and 15.1% were discharged or dismissed without further penalty.

Shop thefts
Of the 11,701 people sentenced for shop thefts between 1 January 2010 and 31 December 2012, 19.6% received a period of imprisonment, 12.5% received a wholly suspended sentence of imprisonment, 17.3% received some form of community based order, 23.9% of people received a fine, and 23.6% were discharged or dismissed without further penalty.

Theft of a motor vehicle
Of the 2,599 people sentenced for theft of a motor vehicle between 1 January 2010 and 31 December 2012, 35.6% received a period of imprisonment, 14.2% received a wholly suspended sentence of imprisonment, 22.1% received some form of community based order, 9.8% received a fine, and 9% were discharged or dismissed without further penalty.

Theft Sentencing in the County Court

Sentencing in the County Court

According to the most recent Sentencing Snapshot provided by the Sentencing Council of Victoria, covering the period 2007 to 2012,26 220 people were sentenced in the County Court or Supreme Court for the principal offence of theft.

Over the five year period, 50% of people sentenced received a period of imprisonment, 20% received a wholly suspended period of imprisonment, 14% received a partially suspended sentence, 6% received a fine, and 3% received some form of community based order.

Imprisonment terms ranged from 7 days to 6 years, while the median length of imprisonment was 2 years. The most common length of imprisonment imposed was between 1 and 2 years.

To view sentencing decisions by Victorian County Courts for the charge of Theft, visit this page.

Case Example from our firm



[1]Section 74 of the Crimes Act 1958 (Vic).
[2]R v Greenberg [1972] Crim LR 331.
[3]Section 73(4) of the Crimes Act 1958 (Vic).
[4]Roffel v R [1985] VR 511.
[5]Roffel v R [1985] VR 511.
[6]R v Gomez [1993] VR 685.
[7]See section 73(4) Crimes Act 1958 (Vic).
[8]Section 71(1) Crimes Act 1958 (Vic).
[9]Section 72(1) Crimes Act 1958 (Vic).
[10]Section 71(2) Crimes Act 1958 (Vic).
[11]R v Bonner [1970] WLR 838.
[12]See Williams v Phillips (1957) 41 Cr App R 5 at 8.
[13]R v White (1912) 7 Cr App R 266 per Alverstone J at 268.
[14]Miinigall v McCammon [1970] SASR 82 per Bray CJ at 84.
[15]R v Small [1987] Crim LR 777).
[16]R v Easom [1971] 2 QB 315; Sharp v McCormick [1986] VR 869.
[17]Section 73(12) Crimes Act 1958 (Vic).
[18]Section 73(12) Crimes Act 1958 (Vic).
[19]Section 73(14) Crimes Act 1958 (Vic).
[20]Section 72(1) Crimes Act 1958 (Vic)
[21]R v Salvo [1980] VR 401; R v Bonollo [1981] VR 633 and R v Brow [1981] VR 783.
[22]Section 73(2)(a) Crimes Act 1958 (Vic).
[23]Section 73(2)(c) Crimes Act 1958 (Vic).
[24]R v MacDonald (1983) 8 A Crim R 248.
[25]R v Salvo [1980] VR 401; R v Bernhard (1984) SASR 48.
[26]Sentencing Snapshot 137 released in March 2013.