Stealing/Theft

Fraud is the mental element of the offence of stealing and requires a degree of intention in the act of stealing.  The Queensland Criminal Code provides that fraud is present if there is intent to:

• Deprive the other person of the stolen item permanently. This is the usual case for stealing. (Note – the intention here is not satisfied if there is evidence that the defendant only had an intention to deprive the person of the item temporarily)
• Use it as a pledge or security
• Take it on a condition about its return that the person may be unable to perform
• Deal with it in a way that it cannot be returned in the same condition
• Use it at the defendant’s will if the property is money, even if the defendant intends to repay the other person afterwards.

Apart from satisfying one of these modes of intent, there is no additional requirement for the prosecution to prove or intend to prove that the accused acted dishonestly.

The element of taking is satisfied if a defendant physically takes something and carries it away from the true owner.  The slightest degree of movement can be sufficient but the act of stealing is not complete until the property actually moves or is otherwise actually dealt with by some physical act.  In addition, taking may be a continuous act (e.g. stealing is established if someone takes an item with no intent of stealing it but then decides to keep it).

Converting involves dealing with goods in a manner inconsistent with the right of the true owner.  There must also be an intention to deny the owner’s right or to assert a right that is inconsistent with the owner’s right.  Examples of converting include keeping something, selling it, or changing its appearance.

Demonstrating ownership is an important element for the prosecution to prove in a stealing offence.  Ownership has an extended meaning under the Criminal Code and possession or control of property is sufficient.  Where ownership is unknown, a prosecution can still occur, but the prosecution must prove that ownership exists but is unknown.

The Criminal Code contains a provision for the situation where someone finds and keeps an item.  A defence to this charge is when, at the time of deciding to keep it, the defendant did not know who the owner of the lost item was, and they reasonably believed the owner could not be found.  If, for example, there were some identifying details of the owner on the property, a failure to contact the owner would constitute stealing.  However, if its owner has abandoned the property, it cannot be stolen.

Shoplifting is referred to as “Unauthorised dealing with shop goods”.  This is a regulatory offence that applies in respect of shop goods valued at $150 or less.  It is a regulatory offence to:

• Consume goods without the consent, express or implied, of the person in lawful possession of the goods
• Deliberately alter, remove, deface or otherwise render indistinguishable a price shown on the goods, without the consent, express or implied, of the person in lawful possession of them
• Take the items away without discharging, or attempting honestly or making proper arrangements to discharge their debt for the goods, whether or not the property in the goods has passed to the person.

Regulatory Offences Act charges are determined summarily.  A defence to this charge is specifically provided for and a defendant must prove a defence on the balance of probabilities.

The penalty for shoplifting is usually a fine, and the court can also order payment of costs of the investigation, costs of court and compensation.

The head sentence for stealing is generally five years imprisonment

However, this head sentence can be increased to ten years imprisonment where the following features exist:

• The property is stolen from the person by another
• The property is stolen from a dwelling and exceeds $1000 in value, or was taken with a threat of violence
• The property is stolen from a vehicle
• There is a relationship between the stealing and the defendant’s position (e.g. public servant, clerk, servant, company director, agent or tenant)
• The value of the thing exceeds $5000 or after a previous conviction
• The property stolen is a firearm

Where the property stolen is a firearm and is being stolen for the purpose of committing an indictable offence, or the property stolen is a vehicle, the head sentence can be increased to 14 years imprisonment

In certain circumstances, where the value of the property stolen is in excess of $30 000, there is provision for the charge to be dealt with on indictment in the District Court.

Offences alleging aggravating features carrying a period of imprisonment of 14 years must also be dealt with in the District Court.

There is also discretion for a magistrate to order that a charge be referred to the higher court if the Magistrate is of the view that the defendant will not be appropriately punished (Magistrates can only impose terms of imprisonment up to three years).