Theft – is it really a petty offence?

Theft or stealing is the dishonest ‘appropriation’ of property or goods belonging to another person.[1] Appropriation means taking someone’s goods or property but also means assuming any of the rights of the owner. Therefore it can include taking, possessing, offering to sell, damaging, lending or using an item of property that does not belong to you.[2] For example, if you take money that belongs to someone else or lend someone jewellery that does not belong to you, you could be charged with Theft.

Elements of the offence

There are three elements of the offence of theft that the Police must establish:

1. You ‘appropriated’ an item of ‘property’ that did not belong to you;
2. You had the intention to permanently deprive the owner of the property (NB: this applies differently when the item is a motor vehicle);
3. You acquired the item of property dishonestly,[3] including if you were willing to pay for the item of property.[4]

The item allegedly taken must meet the definition of property, which includes money, real property (such as land or houses) or personal property (such as jewellery, cars or artwork). The definition of property can also include intangible items, for example, stocks, bonds or information.

When the item is a motor vehicle, the police do not need to prove that you intended permanently to deprive the owner of the vehicle if they have evidence that you used the vehicle in any manner without the consent of the owner. This is known as the “joy-riding” rule. They still have to prove the dishonesty element of the offence ie. that you knew or ought to have known the item was stolen.

Possible Penalties

If you are found guilty of theft, you may be liable for a period of imprisonment of up to a maximum of 10 years.[5] A Court can also order that you return the property or pay the owner for the value of it. The penalty imposed will depend on the value of the property taken, the circumstances of the offence and the Court in which your case is heard. For example, the Magistrates’ Court can hear cases where the alleged theft was under $100,000 and can only impose a maximum penalty of 2 years imprisonment for one offence or 5 years imprisonment for two or more offences.

Is there a difference between theft and robbery?

Yes – robbery is a more serious offence involving the use of force to steal property. The maximum penalty for Robbery is 15 years imprisonment.[6] If weapons, explosives or firearms were used in the commission of the robbery, this is classified as Armed Robbery and carries a penalty of up to 25 years imprisonment.[7]

Available defences to theft

There are various defences to theft, including that the appropriation of property was not dishonest. For example, a defence exists if:

• If you believed you had a lawful right to the property;
• If you believed the owner consented or you did not intend to permanently deprive the owner of the item; and
• If you find the property and have taken reasonable steps to locate the owner.[8]

It is also possible to argue that you were not the person who committed the alleged offence or that the item does not meet the definition of property. Therefore the circumstances of your case and your belief as to who owned the property are crucial.

We suggest that you should contact an experienced legal practitioner as soon as possible if you are to be interviewed in relation to this offence so that you can be provided with appropriate advice based on the circumstances relevant to your matter.

[1] Crimes Act 1958 (Vic) s 72.
[2] Roffel v R [1985] VR 511.
[3] Crimes Act 1958 (Vic) 72.
[4] Crimes Act 1958 (Vic) 73(3).
[5] Crimes Act 1958 (Vic) 74.
[6] Crimes Act 1958 (Vic) 75.
[7] Crimes Act 1958 (Vic) 75A(1)(2).
[8] Crimes Act 1958 (Vic) 73(2).