The Law, Defences and Penalties for Shoplifting in New South Wales

The New South Wales Police Force has reported that 84 people were arrested during a three-day operation targeting shoplifting across the Sydney CBD, Ultimo and Bondi areas on 8, 9 and 10 December 2021.

Operation Lightfingers comprised officers from the Central Metropolitan Region Enforcement and Eastern Suburbs, Leichhardt and Sydney City Local Area Commands, with assistance from loss prevention officers and security staff in several major retail outlets.

Police say the operation prevented more than $11,000 worth of goods being stolen, “including electronic goods, clothing, perfume, bags and groceries”.

According to Detective Assistant Inspector Matthew Stratton,

“Retail theft continues to cost the industry billions of dollars each year, which is why we remain committed to cracking down on those who attempt to take goods without paying for them”.

Of those arrested, 33 were charged with criminal offences, 43 issued with criminal infringement notices, four issued with warnings and four young people issued with cautions.

The operation is intended to deter potential shoplifters in the lead-up to Christmas.

The offence of shoplifting in New South Wales

Shoplifting is a type of larceny under the laws of our state.

To establish a larceny, the prosecution must prove beyond reasonable doubt that:

Larceny is an offence under Section 117 of the Crimes Act 1900 (NSW).

The offence is commonly known as ‘theft’ or ‘stealing’. The High Court of Australia, in Ilich v R (1987), offers a clear definition. A person commits larceny when they fraudulently take something capable of being stolen without consent and with the intent to permanently deprive the owner of the item taken.

While larceny has a specific legal definition, “theft” is a broader term that encompasses broader offences. These include larceny, identity theft, robbery, fraud, embezzlement, and receiving stolen property.

In NSW, the offence of larceny covers all conduct similar to the American offences of petty theft, common theft, and grand larceny. However, unlike the American legal system, NSW law considers all such actions under the single offence of larceny, regardless of the stolen property’s value. The different penalty levels depend  on the circumstances and value involved.

To establish a larceny, the prosecution must prove beyond reasonable doubt that:

1. You took and carried away property,
2. The property belonged to another,
3. You did not have the owner’s consent,
4. You intended to permanently deprive the owner of the property, and
5. Your actions were dishonest.

The prosecution will fail if it is unable to prove each of these ‘essential elements’.

What are the penalties for shoplifting?

The maximum penalty for larceny is 5 years in prison.

However, this maximum penalty is only applicable if the case is referred to a higher court, such as the District Court.

Schedule 1 of the Criminal Procedure Act 1986 makes clear that if the case remains in the Local Court, the maximum penalty is 12 months in prison if the value of the goods is $5000 or less, or two years in prison if the value is more than $5000.

Where the value of the goods does not exceed $300, police have discretion to issue a criminal infringement notice (or on-the-spot fine), rather than serve a court attendance notice requiring a person to go to court.

The amount of that fine is $300 and does not carry a criminal record.

Will I get a criminal record if I am guilty of shoplifting?

If the case proceeds to court, you will have the option of pleading guilty or not guilty.

If you plead not guilty and the prosecution is unable to prove all of the essential elements of the offence beyond a reasonable doubt, you will be acquitted of the charge and there will be no criminal record or other penalties.

If you plead guilty or are found guilty, the court will still have the discretion to allow you to avoid a criminal record by granting a ‘section 10 dismissal’.

A Magistrate can order that no conviction be recorded by granting a section 10. The Magistrate must have evidence of your remorse, offence circumstances, character references, and evidence of returning the items or goods. It’s beneficial to obtain legal advice for any larceny charge, particularly if the consequences of a conviction are imminent.

A person charged with larceny can also receive a conditional release order without conviction’, which means guilty, but no criminal conviction recorded against your name.

If you are suffering from a mental health condition, an application can be made for a section 14 mental health order which can result in the charge being dismissed, as long as you comply with a treatment plan. In that case, there will be no criminal conviction and no finding of guilt.

What are the defences to shoplifting?

In addition to having to establish the essential elements of the offence, the prosecution will be required to disprove beyond reasonable doubt any legal defence that is raised on the evidence before the court.

Legal defences to larceny include duress and necessity, as well as what is known as a ‘claim of right’ – which is where you genuinely believed you had a legal right to all of the property in question.

Other common defences include ‘consent’, where the person believes they had permission from the owner of the item to take the property, or ‘mistake of fact’, where the defendant made an honest mistake about the ownership of the property. Lastly, a less-common defense is entrapment, when the defendant was coerced by law enforcement to commit the theft that they wouldn’t have done otherwise. 

Accused of shoplifting?

If you are going to court for shoplifting, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free first conference with an experienced defence lawyer who will advise you of your options and the best way forward, and fight for the optimal outcome.