Common Law and Larceny in NSW

Larceny, otherwise known as theft or stealing, is when a person attempts to permanently deprive someone else of something that is rightfully theirs.

Larceny is part of the Crimes Act 1900, and depending on the nature of the offence and the value of the property or item stolen, it can be dealt with summarily or as an indictable offence.

Under common law, larceny in NSW has three different elements that need to be present for a defendant to be found guilty. These are:

• The property must belong to someone other than the defendant.
• It must have been physically taken and carried away.
• This must have been done without the consent of the rightful owner.

If the prosecution can prove that all three elements were present when the offence was committed, the defendant can be found guilty and could face up to five years in prison if the matter is dealt with as an indictable offence, and two years in prison if it is dealt with summarily.

Are there any other significant factors which must be present?

If the above three factors are present, the judge or magistrate will examine a number of other factors surrounding the offence before deciding whether the defendant is guilty or not.

These include:

• The intention of the accused. To qualify as larceny, the theft needs to have been undertaken with the intention of unlawfully depriving someone else of property that is theirs. If it was a genuine mistake or the accused reasonably believed that they had a right to the property and took it on that basis, they can’t be convicted of larceny.
• The property or item has to have been taken dishonestly according to the standards of honest, ordinary people.

Claiming that the defendant intended to restore the property to its rightful owner is not usually considered a legitimate defence if all the above factors were present when the item was taken.

Are there any defences to larceny?

As there are so many factors that need to be proven for a conviction of larceny to be successful, providing evidence that proves one or more of the necessary elements was not in place can provide a successful defence in many cases.

When deciding whether or not to convict a defendant for larceny, the magistrate will take a number of different factors into consideration, including their motivation, any mitigating circumstances that might have contributed to the offence and the value of the item or items that were allegedly stolen.

What are the penalties for a larceny conviction?

Larceny comes with a number of potential penalties in NSW, including a custodial prison sentence, home detention, community service and good behaviour bonds.

In some cases, defendants may also be required to make reparations to the victim.

If a defendant is found guilty and convicted of larceny, they may be able to request a section 10 dismissal or conditional release order, depending on their previous history and the circumstances surrounding the offence.

Section 10 dismissals and conditional release orders are findings of guilt without a conviction, which means that the defendant won’t face penalties for their offence and it won’t appear on their criminal record.

If you are facing larceny charges, a criminal lawyer can help advise you on your best defence and help you avoid a harsh penalty.