Minor Theft
- Minor theft is an offence under section 321 of the Criminal Code 2002.
- Minor theft carries a maximum penalty of a $8,000.00 fine, imprisonment for 6 months, or both.
- Minor theft is the same as theft however only for property that has a replacement value of $2000 or less at the time of appropriation.
- This is a strictly summary offence, meaning it must be heard in the ACT Magistrates Court.
- Unlike theft, charges of minor theft offer no alternative verdicts.
- A person can still be charged with theft even if the replacement value of the stolen property is $2000 or less.
- That you dishonestly appropriated property.
- That the property belonged to someone else.
- That you had the intention of permanently depriving the other person of the property.
- That the property was valued at $2000 or less at the time of appropriation.
The crucial difference between an offence of ‘theft’ and ‘minor theft’ is that for an offence of minor theft, the prosecution must prove the value of the property was less than $2,000.00. This is not an element for an offence of ‘theft’.
When facing charges of theft or minor theft, it’s crucial to understand the distinctions. While both involve dishonestly appropriating property belonging to another with the intent of permanently depriving them, minor theft specifically pertains to property valued at $2000 or less. This distinction underscores the importance of seeking legal advice. Talking to a lawyer can provide clarity on the charges you’re facing and help navigate the legal complexities involved in your defence strategy.
Q: What constitutes ‘property’?
A: The legal definition of property is quite broad. It includes any property of a tangible nature, including electricity, gas, water, a wild creature that is tamed or ordinarily kept in someone’s possession, and any organ or part of a human body or substance extracted from a human body.
Q: What is the legal definition of ‘dishonest’?
A: The legal definition of a dishonest act refers to what would be considered as dishonest as per the standards of ordinary people and as one known to the defendant to be dishonest according to the standards of ordinary people.
However, taking property belonging to another is not dishonest if you believe that the person to whom the property belongs could not be discovered by taking reasonable steps (this does not apply if you held the property as a trustee or personal representative).
Taking someone else’s property can still be dishonest even if you or another person is willing to pay for it.
Determining whether you acted dishonestly is up to the trier of fact.
Q: What does it mean to ‘appropriate property’?
A: For someone to appropriate property, they must have assumed any of the rights of an owner to ownership, possession or control of the property, without the consent of a person to whom the property belongs.
If you came by the property (innocently or not) without committing theft, then appropriation occurs when, without any consent from the owner, you keep it or deal with it as the owner of the property.
If you receive property from a person in good faith, and then assume the rights of the owner that you believed were transferred to you with the property, then you cannot be found to have appropriated property due to a defect in the transferor’s title.
Q: What if it is unclear if the property belonged to someone else?
A: Many factors can make it unclear if the property belongs to someone else. If the property belongs to two or more people, then a reference to one of the people to whom the property belongs can be taken as a reference to each of them.
If property is subject to a trust, then the person to whom the property belongs can include anyone who has a right to enforce the trust. Further, an intention to defeat the trust is an intention to deprive any such person of the property.
Property of a corporation solely belongs to the corporation despite a vacancy in the corporation.
If a person A receives property from or on account of someone else (person B) and is under a legal obligation to B to retain and deal with the property or its proceeds in a particular way, then the property or proceeds of the property belong to B, against A.
If a person A gets property by a fundamental mistake and is under a legal obligation to make restoration (in whole or in part) of the property, then the property or its proceeds belong (to the extent of the obligation and against A) to the person entitled to restoration (person B). An intention not to make restoration is an intention to permanently deprive B of the property or the proceeds, and an appropriation of the property or proceeds without B’s consent. A fundamental mistake in this situation means either a mistake about the identity of the person getting the property, a mistake about the essential nature of the property or a mistake about the amount of any money (if the person getting the money is aware of the mistake when getting the money).
Q: How is it determined that I had the intention of permanently depriving another person of their property?
A: It will be found that you had the intention of permanently depriving another person of their property if the prosecution can prove that you appropriated property belonging to another person without meaning them to permanently lose their property and you intended to treat the property as your own to dispose of anyway, regardless of the owner’s rights over the property.
Taking property with the intention to return it to the owner in due course would of course not meet this element of the offence.
It can sometimes be difficult to determine whether actions taken are considered an attempt to treat the property as one’s own to dispose of.
For example, if you borrow or lend property belonging to another, the borrowing or lending can amount to treating the property as your own to dispose of regardless of the rights of the person lending the property to you. Nevertheless, you can only be seen as intending to permanently deprive if the borrowing or the lending is for a period and, in circumstances, equivalent to an outright taking or disposal.
Further, if you have possession or control (lawfully or not) of property belonging to another person, and you part with the property under a condition about its return that you may not be able to carry out, and that parting has been done for your own purposes and without the other person’s (the owner’s) authority, then that parting can be seen as treating the property as your own to dispose of, regardless of the owner’s rights.
There are also other circumstantial situations in which you may be considered by the courts to have intentionally permanently deprived someone else of property. A skilled criminal defence lawyer will diligently work to counter any circumstantial situations where you may be perceived as intentionally permanently depriving someone else of property.
Theft
- It is an offence under s308 of the Criminal Code 2002 to commit theft.
- The maximum penalty for theft in the ACT is a $160,000.00 fine, 10 years of imprisonment, or both.
- Alternative verdicts are available where the theft involves the taking of a motor vehicle without consent, theft or obtaining property by deception and receiving, and for theft and obtaining property by deception.
- This is an indictable offence, meaning it can be finalised in the ACT Magistrates Court or ACT Supreme Court.
- It is an offence under s308 of the Criminal Code 2002 to commit theft.
- The maximum penalty for theft in the ACT is a $160,000.00 fine, 10 years of imprisonment, or both.
- Alternative verdicts are available where the theft involves the taking of a motor vehicle without consent, theft or obtaining property by deception and receiving, and for theft and obtaining property by deception.
- This is an indictable offence, meaning it can be finalised in the ACT Magistrates Court or ACT Supreme Court.
- That you dishonestly appropriated property
- That the property belonged to someone else
- That you had the intention of permanently depriving the other person of the property.
Your lawyer will aim to create reasonable doubt about your guilt and to ensure that your rights are protected throughout the legal process.
Q. What constitutes ‘property’?
The legal definition of property is broad. It includes any property of a tangible nature, including electricity, gas, water, a wild creature that is tamed or ordinarily kept in someone’s possession, and any organ or part of a human body or substance extracted from a human body.
Q. What is the legal definition of ‘dishonest’?
The legal definition of a dishonest act refers to what would be considered dishonest according to the standards of ordinary people and as one known to the defendant to be dishonest according to the standards of ordinary people.
However, taking property belonging to another is not dishonest if you believe that the person to whom the property belongs could not be discovered by taking reasonable steps (this does not apply if you held the property as a trustee or personal representative).
Taking someone else’s property can still be dishonest even if you or another person is willing to pay for it.
Determining whether you acted dishonestly is up to the trier of fact.
Q. What does it mean to ‘appropriate property’?
For someone to appropriate property, they must have assumed any of the rights of an owner to ownership, possession or control of the property, without the consent of a person to whom the property belongs.
If you came by the property (innocently or not) without committing theft, then appropriation occurs when, without any consent from the owner, you keep it or deal with it as the owner of the property.
If you receive property from a person in good faith, and then assume the rights of the owner that you believed were transferred to you with the property, then you cannot be found to have appropriated property due to a defect in the transferor’s title.
Q. What if it is unclear if the property belonged to someone else?
Many factors can make it unclear if the property belongs to someone else. If the property belongs to two or more people, then a reference to one of the people to whom the property belongs can be taken as a reference to each of them.
If property is subject to a trust, then the person to whom the property belongs can include anyone who has a right to enforce the trust. Further, an intention to defeat the trust is an intention to deprive any such person of the property.
Property of a corporation solely belongs to the corporation despite a vacancy in the corporation. If person A receives property from or on account of someone else (person B) and is under a legal obligation to B to retain and deal with the property or its proceeds in a particular way, then the property or proceeds of the property belong to B, against A.
Receiving Stolen Property
In the ACT (Australian Capital Territory), a receiving stolen property charge under Section 313 of the Criminal Code 2002 means dishonestly receiving property you know or believe to be stolen, carrying a penalty of up to 10 years jail or 1000 penalty units (around $160,000), with an alternative verdict possible for theft, meaning you can’t be convicted of both theft and receiving the same item; it’s an indictable offence heard in the Magistrates or Supreme Court, requiring proof of dishonest reception and knowledge it was stolen, not just suspicion.
In the ACT (Australian Capital Territory), a receiving stolen property charge under Section 313 of the Criminal Code 2002 means dishonestly receiving property you know or believe to be stolen, carrying a penalty of up to 10 years jail or 1000 penalty units (around $160,000), with an alternative verdict possible for theft, meaning you can’t be convicted of both theft and receiving the same item; it’s an indictable offence heard in the Magistrates or Supreme Court, requiring proof of dishonest reception and knowledge it was stolen, not just suspicion.
- Under section 313 of the Criminal Code, it is an offence to receive stolen property.
- Receiving stolen property carries a maximum penalty of a $160,000.00 fine, imprisonment for 10 years, or both.
- The offence of receiving stolen property also carries an alternative verdict.
- Receiving stolen property is an indictable offence, meaning it can be finalised in the ACT Magistrates Court or ACT Supreme Court.
The prosecutor must prove that you:
- Received stolen property.
- Received the property dishonestly.
- Knew or believed the property to be stolen.
Your lawyer will work to challenge the prosecutor’s case.
Q: What is stolen property?
A: Stolen property is property that has been appropriated. For someone to appropriate property, they must have assumed any of the rights of an owner to ownership, possession or control of the property, without the consent of a person to whom the property belongs.
If you came by the property (innocently or not) without committing theft, then appropriation occurs when, without any consent from the owner, you keep it or deal with it as the owner of the property.
If you receive property from a person in good faith, and then assume the rights of the owner that you believed were transferred to you with the property, then you cannot be found to have appropriated property due to a defect in the transferor’s title.
Q: What does it mean to receive property dishonestly?
A: The legal definition of a dishonest act refers to what would be considered as dishonest as per the standards of ordinary people and as one known to the defendant to be dishonest according to the standards of ordinary people.
Receiving property belonging to another is not dishonest if you believe that the person to whom the property belongs could not be discovered by taking reasonable steps (this does not apply to you holding the property as a trustee or personal representative).
Furthermore, receiving someone else’s property can still be dishonest even if you or another person is willing to pay for it.
Determining whether you acted dishonestly is up to the trier of fact.
Q: How does the prosecution prove I knew or believed the property to be stolen?
A: The prosecution must prove belief or knowledge that the property was stolen for you to be found guilty. Belief and knowledge are proven if the prosecution can show beyond reasonable doubt that you were aware that the property was stolen.
Q: What are the alternative verdicts for receiving?
A: Section 371 of the Criminal Code deals with the alternative verdict for receiving. If you are on trial for receiving and the trier of fact is not satisfied that you committed the offence, but they are satisfied beyond reasonable doubt that you committed an offence of theft or obtaining property by deception, then you may be found guilty for that offence, but only if you have received procedural fairness. This effect can also occur vice versa.
Taking or Using a Motor Vehicle Without Consent
In the ACT, taking or using a motor vehicle without consent is primarily charged under Section 318 of the Criminal Code 2002, known as “Taking or using motor vehicle without consent,” carrying a maximum penalty of 500 penalty units, 5 years imprisonment, or both. It involves dishonestly taking, driving, or riding in someone else’s vehicle without permission, differing slightly from general stealing by focusing on the specific vehicle context, though linked to broader theft offenses.
In the ACT, taking or using a motor vehicle without consent is primarily charged under Section 318 of the Criminal Code 2002, known as “Taking or using motor vehicle without consent,” carrying a maximum penalty of 500 penalty units, 5 years imprisonment, or both. It involves dishonestly taking, driving, or riding in someone else’s vehicle without permission, differing slightly from general stealing by focusing on the specific vehicle context, though linked to broader theft offenses.
- Under section 318(1) of the Criminal Code 2002 (ACT), taking a motor vehicle without consent is an offence.
- Taking a motor vehicle without consent carries a maximum penalty of a $80,000.00 fine, 5 years imprisonment, or both.
- Under section 370, there is an alternative verdict to this offence.
- The offence is indictable, meaning it can be finalised in the ACT Magistrates Court or ACT Supreme Court.
The prosecutor must prove that you:
- That you dishonestly took a motor vehicle.
- That the motor vehicle you took belonged to someone else.
- That you did not have consent to take the motor vehicle.
Your lawyer will work to challenge the prosecutor’s case.
Q: What does it mean to ‘dishonestly’ take a motor vehicle?
A: The legal definition of a dishonest act refers to what would be considered as dishonest as per the standards of ordinary people and as one known to the defendant to be dishonest according to the standards of ordinary people.
Taking a motor vehicle belonging to another is not dishonest if you believe that the person to whom the property belongs could not be discovered by taking reasonable steps (this does not apply if you held the property as a trustee or personal representative).
Taking someone’s motor vehicle can still be dishonest even if you or another person is willing to pay for it.
Determining whether you acted dishonestly is up to the trier of fact.
Q: What does ‘belonging to someone else’ mean?
A: A vehicle will be considered to belong to someone if they have possession or control over the vehicle or have a proprietary right or interest in it (other than an equitable interest arising only from an agreement to transfer or grant an interest, or from a constructive trust).
Q: What constitutes a motor vehicle?
A: Under the Road Transport (General) Act 1999, a motor vehicle is a vehicle built to be propelled by a motor that forms part of the vehicle but does not include a personal mobility device.
Q: Are there any defences that apply to me?
A: A skilled lawyer will meticulously examine the circumstances surrounding the case to identify the most effective line of defence. You cannot be found guilty of taking a motor vehicle without consent if you did so under the defence of lawful possession. You cannot be criminally responsible for an offence of taking a motor vehicle without consent if you are employed by, or appointed as a member of, a law enforcement or justice agency, if you are required to provide technical, professional expert services to a law enforcement or justice agency, or if you are a legal practitioner or a person employed by or to required to provide technical, professional or expert services to a legal practitioner. Furthermore, the possession must be for a law enforcement purpose and must be reasonable in the circumstances for that purpose.
Possession of a motor vehicle without consent is for a law enforcement purpose if the possession is necessary for, or to assist in, enforcing a law of the Commonwealth, a State or Territory, monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, State or Territory, or the administration of justice.
Q: What is the alternative verdict to taking a motor vehicle without consent?
A: Section 370 of the Criminal Code deals with alternative verdicts for the theft and taking of motor vehicles without consent. This section applies if, while you are on trial for taking a motor vehicle without consent, the trier of fact is not satisfied that you committed that offence but is satisfied beyond reasonable doubt that you committed theft. In this situation you may then be found guilty of that offence, however only if you have been given procedural fairness in relation to that finding of guilt.
Further advice:
This blog is intended to provide general information about matters that often come before the court and is not legal advice. For legal advice about this offence or any other criminal offence, please reach out to us and speak to one of our lawyers on (02) 9696 1361 (Sydney), (02) 5104 9640 (Canberra) or (08) 6255 6909 (Perth) or by email at [email protected]
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