Dishonest Acquisition

Contents
1
2

Summary vs. indictable...........................................................................................1

Larceny....................................................................................................................1

1 Summary vs. indictable

Criminal Procedure Act 1986 (NSW)

Indictable offences have the maximum penalty prescribed in the offences.

Summary offences have maximum penalties under the Criminal Procedure Act.
Table 1 offences have a maximum penalty of 2 years, or $1100 (s 267).
Table 2 offences have a maximum penalty of 12 months, or $5500 (s 268).

Property offences

Most property offences are dealt with summarily.

Robbery, and burglary of at least $60 000, are indictable.
If the stolen property at least $5000, Table 1 applies.
If the stolen property is less than $5000, Table 2 applies.
If the stolen property is less than $2200, the maximum fine is $2200.
Car joyriding (s 154A) has a maximum penalty of 2 years, regardless of the cars value
(Criminal Procedure Act s 268).

2 Larceny

Larceny is a common law offence.

The Crimes Act s 117 provides a maximum penalty of 5 years.
The Confiscation of Proceeds of Crime Act 1989 (NSW) allows forfeiture and pecuniary
penalty orders.

Crimes Act s 117

Whosoever commits larceny, or any felony by this Act made punishable like larceny, shall,
except in the cases hereinafter otherwise provided for, be liable to penal servitude for five
years.

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2.1 Actus reus

Requirement 1: Property capable of being stolen
Property generally must be tangible (Croton).1
The following can be stolen:

Metal, glass and wood fixed to houses or land (Crimes Act s 139)
Trees (Crimes Act s 140)
Domesticated farm animals (Crimes Act ss 4, 126-131) (14 years)
Domesticated dogs, animals or birds, and fish in private waters (ss 132-133, 502-512)
Cash (Croton)2
Securities (Crimes Act s 134)
Gas (White).3

The following cannot be stolen:

Land, because it cannot be taken and carried away.

Fixtures, because they are part of the land.
Wild animals (Case of Swans;4 Blade v Higgs)5
Bank deposits, because they are intangible (Croton)6
Electricity, because it is intangible
Data, because they are intangible (Oxford v Moss).7

The following are dealt with elsewhere:

Abstracting electricity is prohibited under the Electricity Supply Act 1995 (NSW) s 64.
Misusing data is prohibited under the Crimes Act pt 6.
Infringing intellectual property is dealt with under the Copyright Act 1968 (Cth).

1 Croton (1967) 117 CLR 326, 330 (cash can be stolen, but bank deposits cannot).
2 Croton (1967) 117 CLR 326, 330
3 White (1853) Dears 203.
4 Case of Swans (1591) 7 Co Rep 15b.
5 Blade v Higgs (1865) 11 HLC 621.
6 Croton (1967) 117 CLR 326, 330
7 Oxford v Moss (1978) 68 Cr App R 183.

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Requirement 2: Property in possession of another

Possession requires (1) physical control, and (2) intention to maintain physical control.
The property does not need to be possessed legally (Anic, Stalianou and Suleyman).8
Employers and masters have constructive possession of property held by employees and

servants (Williams v Phillips).9

Larceny by clerks or servants is prohibited separately (Crimes Act s 156) (10 years).
The last person to possess goods may have constructive possession.
People may have constructive possession of goods on their land, even if unaware of them
(Hibbert v McKiernan).10

Requirement 3: Property taken and carried away (Asportation)

Any movement is sufficient (Wallis v Lane).11

At common law, keeping goods obtained by mistake is insufficient (Potisk).12
At statute law, it is an offence to dishonestly keep property innocently obtained
(Crimes Act s 124).

Requirement 4: Without the owners consent

It does not need to be against the owners consent (Middleton).13

Exploiting an electronic error does not constitute consent (Kennison v Daire).14
Breaching a licence will be without consent (Kolosque v Miyazaki).15

8 Anic, Stalianou and Suleyman (1993) 61 SASR 223, 29-33 (Bollen J; King CJ agreeing; Mohr
J semble) (SASC in Banco).
9 Williams v Phillips (1957) 41 Cr App 5.
10 Hibbert v McKiernan [1948] 2 KB 142.
11 Wallis v Lane [1964] VR 293, 295 (Herring CJ).
12 Potisk (1973) 6 SASR 389, 398 (Bray CJ).
13 Middleton (1873) LR 2 CCR 38, 54-55 (Bramwell B).
14 Kennison v Daire (1986) 60 ALJR 249 (Gibbs CJ, Mason, Wilson, Deane and Dawson JJ)
(HCA).

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2.2 Mens rea

Requirement 1: Intention to permanently deprive

Intention to return is not a defence (Crimes Act s 118).

Intention to exercise ownership is sufficient (Foster).16
Intention to return fungibles (e.g. money) is not a defence (Williams;17 Feely).18
Conditional return (e.g. return fraud) is not a defence (Lowe;19 Sharp).20
It is not a defence if the propertys value would be exhausted (e.g. travel tickets).21
It is not a defence if the propertys nature would be changed (Weatherstone;22 Smails).23

Requirement 2: Fraudulently or dishonestly

Fraudulently and dishonestly are interchangeable (Glenister;24 Macleod).25

15 Kolosque v Miyazaki (unreported, NSWSC, 17 February 1995) (a licence to take goods to

sales registers does not include placing food where they would spoil, or concealing goods
with intention to steal).
16 Foster (1967) 118 CLR 117, 121 (Barwick CJ) (HCA).
17 Williams [1953] 1 QB 660.
18 Feely [1973] 1 QB 530.
19 Lowe v Hooker [1987] Tas R 153, 157-158 (Cosgrove J) (it was not a defence to return
stolen goods a store for refunds).
20 Sharp v McCormick [1986] VR 869 (taking a motor part from work to see if it fit, with
intention to return if it did not fit, was not a defence).
21 Beecham (1851) 5 Cox CC 181.
22 Weatherstone (1987) 8 Petty Sessions Review 3729 (Street CJ) (welding metal rods
prevented the owner from using them again as rods).
23 R v Smails (1957) WN (NSW) 150 (cutting up railway sleepers prevented the owner from
using them as railway sleepers).
24 Glenister [1980] 2 NSWLR 597.

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Dishonesty is based on current standards of ordinary decent people (Feely).26

Dishonesty is based on morals (Weatherstone).27
Ghosh28 (rejected in Peters)29 held that dishonesty was determined objectively.
Peters30 held that dishonesty was determined subjectively (knowledge, belief, intent).
Weatherstone31 cited Baartman,32 which held that there must be fraudulent intent.

Requirement 3: No claim of right

The claim must be a genuine belief of legal (not moral) entitlement to property (not the

means to recover it), regardless of whether there is an actual legal entitlement. (Fuge).33
The belief need not be reasonable, but must be more than a colourable pretence (Fuge).
There may be a claim to property of equal value (e.g. money) (Fuge).
Property cannot be taken beyond the claim (Fuge).
For an accessory, the principal must have a genuine claim (Fuge).
The defence has an evidentiary burden, and the prosecution has a legal burden (Fuge).

25 Macleod (2003) 214 CLR 230.

26 Feely [1973] 1 QB 530, 538-539, 541 (Lawton LJ), approved in Peters (1998) 192 CLR
493 (HCA).
27 Weatherstone (1987) 8 Petty Sessions Review 3729 (Street CJ).
28 Ghosh [1982] 1 QB 1053 (English).
29 Peters (1998) 192 CLR 493 (HCA).
30 Ibid, but has not been applied in NSW.
31 Weatherstone (1987) 8 Petty Sessions Review 3729 (Street CJ).
32 Baartman [1998] NSWSC 653.
33 Fuge (2001) 123 A Crim R 310, 314-315 (Wood CJ at CL).

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A claim of right negatives the fraudulence or dishonesty in larceny (Langham;34 Walden)35

and dishonest obtaining of property (Love),36 or intend to defraud in fraud offences

(Kastratovic).37
The believed entitlement must be under Australian law, not Indigenous law (Re DPP).38

2.3 Larceny by bailee

A bailee may commit larceny (Crimes Act s 125), even in respect of a substitute for the bailed
property (e.g. money from selling the property, in breach of the bailment) (Slattery;39 Wall).40
Crimes Act s 125
Whosoever, being a bailee of any property, fraudulently takes, or converts, the same, or any
part thereof, or any property into or for which it has been converted, or exchanged, to his
or her own use, or the use of any person other than the owner thereof, although he or she
does not break bulk, or otherwise determine the bailment, shall be deemed to be guilty of
larceny and liable to be indicted for that offence.
The accused shall be taken to be a bailee within the meaning of this section,
although he or she may not have contracted to restore, or deliver, the specific property
received by him or her, or may only have contracted to restore, or deliver, the property
specifically.

2.4 Larceny by servant or employee

Masters and employers have constructive possession of property held by servants and
employees. Thus, servants and employees may commit larceny (Crimes Act s 156) (10 years).

34 Langham (1984) 36 SASR 48, 53 (King CJ).

35 Walden v Hensler (1987) 163 CLR 561, 571 (Brennan J).
36 Love (1980) 17 NSWLR 608.
37 Kastratovic (1985) 42 SASR 59.
38 Re DPP Ref No 1 of 1999 (2000) 10 NTLR 1.
39 Slattery (1905) 2 CLR 546.
40 Wall (1932) 32 SR (NSW) 171.

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Crimes Act s 156

Whosoever, being a clerk, or servant, steals any property belonging to, or in the possession,
or power of, his or her master, or employer, or any property into or for which it has been
converted, or exchanged, shall be liable to imprisonment for ten years.

2.5 Embezzlement
At common law, servants who received property for masters had possession and could not
commit larceny (e.g. bank tellers pocketing deposits). This is now prohibited by statute.

Employers and masters must not have constructive possession. If they do, the offence is

larceny by a clerk or servant (Crimes Act s 156; Hayward;41 Wright).42 Constructive

possession is created by the employees or servants actions (e.g. putting money in a till,
or placing property in the employers car).
Employees and servants must be bound to give the property to employers and masters
(e.g.

41 Hayward (1844) 1 C&K 518; 174 ER 919.

42 Wright (1858) 7 Cox CC 413.