What Does Larceny Mean Under NSW Law?

Larceny is commonly referred to as theft or stealing; it is a criminal offence in New South Wales involving the dishonest taking of property belonging to another person.

While larceny is one of the oldest offences in the criminal law, it remains a common charge before NSW courts and can arise in a variety of circumstances, from shoplifting to theft of money or other valuable property.

Larceny and the Crimes Act 1900 (NSW)

Larceny is found in Part 4, Division 5 of the Crimes Act 1900 (NSW), and the punishment is specifically set out in section 117. The Crimes Act does not contain a statutory definition of larceny. The elements of the offence have developed through the common law.

Most larceny matters are dealt with summarily in the Local Court, where the maximum penalties are significantly lower and depend on the value of the property taken.

What the prosecution needs to prove for larceny

For a person to be found guilty of larceny, the prosecution must prove each element of the offence beyond a reasonable doubt.

The prosecution must establish that:

1. The property belonged to someone other than the accused. The property must have been owned, possessed or controlled by another person at the relevant time. Larceny is fundamentally an offence against possession.
2. The property was taken or carried away. There must be a taking of the property and some movement of it.
3. The property was taken without the owner’s consent. If the owner genuinely consented to the taking, the offence of larceny will generally not be established.
4. The accused intended to permanently deprive the owner of the property.
5. The property was taken dishonestly.

These elements have been recognised by the High Court, including in Ilich v The Queen (1987) 162 CLR 110 at 124, and are reflected in the NSW Judicial Commissions’ directions on larceny.

Dishonestly is an essential element of larceny.

The prosecution must establish that the accused knew the property belonged to another person and that the taking was dishonest when assessed according to the standards of ordinary people.

A person may have a defence where they genuinely and honestly believed they had a legal right to the property.

An intention to return the property does not automatically prevent a person from being found guilty of larceny.

Section 118 of the Crimes Act 1900 provides that where a person appropriates property for their own use or benefit, or for the benefit of another, they are not entitled to an acquittal merely because they intended to eventually to restore the property or, in the case of money, return the equivalent amount.

Whether larceny is established will ultimately depend upon the particular facts and the accused state of mind.

What is the maximum penalty for larceny?

Section 117 of the Crimes Act 1900, sets the maximum penalty when dealt with on indictment which is five [5] years imprisonment.

However, larceny can be dealt with summarily in the Local Court; the Local Court has a jurisdictional limit of two [2] years imprisonment.

When dealt with summarily in the Local Court, the Court may also impose a fine; the applicable maximum fine will depend upon the value of the property. The current penalty provisions are:

(NB: one penalty unit is currently $110)

1. Where the property value does not exceed $2,000; 20 penalty units ($2,200).
2. Where the property value does not exceed $5,000; 50 penalty units ($5,500).
3. Where the property value exceeds $5,000; 100 penalty units ($11,000).

Please note that we are not suggesting you would receive a term of imprisonment or the maximum penalty; the maximum penalty is reserved for the most serious example of the offending, but you should be aware of the penalties available to the court. The sentence will depend upon the circumstances of both the offence and the offender.

If this is a first offence, the item was low-value and has been recovered, and you have references and evidence of good character, a well-prepared sentencing submission can make a real difference to the outcome.

How Larceny Differs from Similar Offences

Larceny vs Robbery

Robbery is larceny plus force or the threat of force. If a wallet is snatched from a bag without the owner noticing, that’s larceny. If the wallet is taken after pushing or threatening the owner, that’s robbery, a far more serious charge under sections 94 and following of the Crimes Act 1900 (NSW).

Larceny vs Break and Enter

If property is taken from inside a home or business after entry without permission, the charge is usually break, enter and steal under section 112, not simple larceny. The break-in element carries much heavier maximum penalties.

What Happens if You Are Charged in NSW

Most larceny matters begin with either a Court Attendance Notice issued by police at the scene, a Field Court Attendance Notice posted to you, or an arrest followed by a bail decision.

Then, on your first court date, this is a mention date. The Court will ask if you want to enter a plea of guilty or not guilty. This is a crucial decision and not one that you should make without legal advice. If you have not had an opportunity to seek legal advice prior to the first mention date, the Court may allow you a short adjournment to get advice or refer you to speak with Legal Aid on the day. It is important, therefore, to be well prepared and informed before this first mention.

Have you been charged with Larceny?

A larceny charge can involve complex questions about ownership, possession, consent, dishonesty and the accused intention at the time the property was taken. There may be questions as to whether the prosecution can prove each element beyond a reasonable doubt or whether a defence may be available. If you have been charged with larceny in NSW, obtaining legal advice at an early stage can help you understand the charge, the evidence against you, the possible defences and the possible sentence outcomes.

How We Can Help

Reach out to the criminal law team at Conditsis Lawyers. We will take the time to talk you through the process step by step, answer any questions you have and advise you on the next steps forward.