Theft & Stealing Offences in Victoria (VIC)

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There are a number of offences where someone can get convicted of under stealing offences in Victoria (if proven guilty). Division 2 of Part 1of the Crimes Act 1958 defines the law and stipulates punishments for Stealing crimes.

The stealing offences in Victoria range from minor shoplifting offences or theft to include;

• Obtaining property by deception,
• Petty theft
• Burglary
• Armed robbery
• Illegal obtaining
• And all other crimes that include the act of unlawfully moving a property.

The offence for stealing is a criminal offence and will show up on an individual's Nationally Coordinated Criminal History Check. The offence is displayed as a “Disclosable Court Outcome”.

What court handles a stealing offence in Victoria (VIC)?

The Crimes Act 1958 (VIC) considers stealing offences as indictable offences and are dealt with by a judge or jury in higher courts. However, both parties may elect to handle the matter as a summary offence in a Magistrate Court, depending on the degree of the offence.

Usually, only offences where the value of what was stolen is over $100,000 will be heard in higher courts as serious offences. An accused person before theft offences is guilty of an indictable crime and liable to imprisonment (10 years maximum).

What is the offence of theft?

Sections 72 and 73 of the Crimes Act 1958 defines the offence of theft as having the following three elements.

When tabled before the court, the judge expects the prosecution to prove three things;

1. The accused appropriated property belonging to another;
2. The accused did so to deprive the other of the property permanently; and
3. The accused acted dishonestly

For the jury to be convinced about the act of appropriation, the prosecution must prove that;

• The accused appropriated something;
• The thing claimed as property; and
• The property belonged to another person.

What is appropriation?

The Crimes Act of Victoria only finds a person guilty of theft if there was an act of appropriation. In this context, appropriation means;

The accused appropriated the property by;

• Assuming the rights of ownership over the property or anything, they held in trust,
• Attempted to or moved the property from the original position without the consent of the owner,
• Adversely interfered with the owner's rights in some way, as referenced in Roffel v R [1985] VR 511.

How does a person illegally appropriate a property?

Several court decisions in the past have adjusted and reviewed the activities or tasks that can constitute a person appropriating a property.

• ✔ Where a person assumes the rights of ownership by claiming rights to perform a duty, only the owner should have the right to;
• ✔ The accused attempted to assume some rights of the owner;
• ✔ Taking, using, damaging, extinguishing, lending, retaining, offering to sell another person property without the consent of the owner;
• ✔ Returned a property in less usable condition than when they collected the property;
• ✔ To have "claimed" a property, the prosecutor must prove that the accused person intricately interfered with, or infringed the owner's rights in some way,
• ✔ If the accused got the property innocently, but later assumed ownership of it by dealing/disposing of it as an owner, they are guilty of appropriating it.

What is a Property?

"Property" under the law must include;

Money, and all other property real/estate. It includes things in action and other intangible properties.

Property can include, but is not limited to:

• Money
• Personal property
• Motor vehicles or aircrafts
• Confidential information of a company
• Electricity or gas
• Cheques or bank accounts
• Animals, including wild creatures
• Land or things forming part of it,
• And items where you do not have the specific authority to do so, such as a trustee, personal representative, or a company liquidator.

In some instances, the thing assumed to be a property may require the court's discretion as to whether it qualifies as a property. Only the judge can determine whether a particular circumstance creates a property right. However, it is for the jury to determine whether that ircumstance existed as a question of fact. It is perfectly explained in R v Hall [1973] QB 126.

Other unique forms of property under the VIC laws

Section 73 of the Act lists Land and other related things as properties that the law considers "has stealable".

Section 73 (6) also provides that a person can be guilty of theft of Land or related properties where;

• The accused is a trustee, personal representative, authorized by power of attorney, or liquidator of a company to handle the Land belonging to another and deals with it in breach of the confidence reposed in them.
• Where the accused severe part of the Land; or,
• Tenant appropriates a feature or structure used with the Land.

In this context, the law recognizes a person as a personal representative even if they are not a trustee. And can still be guilty of appropriating the property illegally.

The law also states that a property must exist before the accused can be guilty of stealing offences.

Stealing offences in exceptional ownership cases

A person can be guilty of stealing offences if the “own” the property under any of these conditions;

1. Subject to a trust;
2. Held under a fiduciary obligation;
3. Subject to a commitment to make restoration; or
4. The property of a corporation sole.

Where the property is subject to a trust

If the property is subject to a trust or includes any beneficiary who must inherit the property by law, the people listed as beneficiaries are considered the "owners" under the law.

Appropriating the property or attempting to by the Trustee are punishable stealing offences under the law.

Where the property is under a fiduciary obligation.

A person would be under a fiduciary duty if they received directives on how such properties under their care are disposed of.

In such cases, the property's giver will remain the property's legal owner until the obligation is satisfied.

Where there is an obligation to make restoration

A person can be found guilty of a stealing offence if they refused/declined the obligation to restore such violations.

The person is required to make restoration where the person;

• received the property by the mistake of another;
• is not aware at the time that a mistake was made or had not yet decided to retain the property dishonestly;
• The error was not "fundamental"; it did not concern the identity of the receiver or the nature or volume of the property); and
• Is under the obligation to return the property.

Under the law, the property is still the legal property of the person entitled to the restoration.

Properties involving a Corporation

Section 73 (11) of the Act regards all properties belonging to a corporation. It doesn't consider any vacancy in the corporation.

Therefore, it is a theft offence to illegally appropriate or claim a corporation's property (organisation) even when the incumbent is dead, or the position that managed such property is vacant.

Offences of trying to deprive the owner permanently

A Stealing crime is complete when the accused showed the intention to permanently deny the owner of their property after they appropriated it.

1. Furthermore, it is enough if the prosecution provided evidence to the court that the accused intended/attempted to deprive the owner permanently.
2. It includes the circumstance where the accused intended to return the property after the owner's interest had fundamentally changed. An example is where the accused person illegally took their ticket for a concert and returned it after the show.
3. If the accused person illegally;
4. Takes a property intending to replace, or
5. Return it in its equivalent,
6. The court can find them guilty of the offence of permanently depriving the owner of the property (stealing crimes). It can be referenced in the case of R v Cockburn [1968].

Intention to deprive particular owners

The court will find you guilty of a stealing offence if it is convinced that you were trying to “cheat” or default on a trust.

This offence also includes where a person refused to restore a property they obtained legally by mistake. It has related properties and the proceeds of the property.

Acting regardless of the owner's rights

The accused is deemed to intend to deprive a person of property permanently. However, they did not have that intention when they appropriated the property if they intended to treat it as his or their own to dispose of regardless of the owner's rights.

Offences of such cases include;

• Where the accused takes the property, promising to return it only in exchange for payment;
• Where the accused takes the property, intending to return it only after fundamentally altering its nature
• If the accused takes property with the possibility of returning it to the owner at a later date, it treats it as their own.
• Where the accused borrows the property from its owner, ultimately intending to return it; or
• Where the accused lends the owner's property to a third party, intending to return it to the owner upon retrieving it.

Offences including Vehicles, Vessels and Aircraft

The Judge or Jury of a Higher court can find an accused person guilty of a stealing offence of vehicles, aircraft and other vehicles where;

• The person used, moved, drove or entered the vehicle without the consent of the owner.
• The person attempted/intended to control or drive the vehicle
• The person rode along in the car, knowing that it was "illegally taken."

The stipulation of this law is found under Section 73 of the Crimes Act 1958.

Stealing Offences involving animals

The Victorian laws regard wild creatures, tamed or untamed, as property. A person or those working under their orders can claim ownership to a wild animal if they;

• Killed/captured it, or,
• If they own the property or Land where such an animal has died and claim it immediately.

A person will be guilty of stealing an animal if they;

• Illegally claimed it from captivity,
• Claimed the animal while the actual owner lost it (and the owner can be found).

However, a person “cannot steal”;

• A wild creature (feral) or,
• Left in captivity, or,
• The carcass of a wild animal (except it is claimed)

However, illegally taking or claiming or using another person's farm animal or domestic animal is regarded as a stealing offence. The offender will be given the stipulated penalty as per the law and the offence will also appear on a Nationally Coordinated Criminal History Check. It includes all instances where you;

• Used the animal to work
• Collected or used any of its product
• Disposed of the animal without the owner's consent

Obtaining the property through dishonest means

The court can find you guilty of a stealing offence if they believe you obtained the property through "dishonest" actions.

Some example of such offences is;

• Where the person deceived the owner of a property to be exchanged,
• Tricked them into releasing their property or surrendering ownership,
• Adjusted or altered documents regarding the request of the property,
• Other acts that included tricks, forgery, deceit, counterfeits, faux items and other schemes to obtain a property illegally

In R v Salvo [1980] VR 401 per Murphy J, the court showed that: stealing offences through Dishonesty is a subjective concept. The jury is concerned with the accused's personal beliefs.

Willingness to pay for the property

A person can still be found guilty of using dishonest means to obtain a property (stealing offence) even if they intended to pay for the property. The court does not consider the accused person willing to pay as an excuse that they used dishonest means.

Receiving Stolen items or their proceeds

The court will find guilty all those who;

• Possess or keep a stolen item,
• Receive a stolen item (where you know it was stolen),
• Receives proceeds from or helps to dispose of a stolen item.

Under the law, such offenders will be convicted the same as those who committed the original stealing offence (10 years imprisonment term).

Theft of a firearm

A person is prohibited under the law from stealing a gun.

The court issues special Penalty of;

• 1800 penalty units or,
• 15 years imprisonment.

Here a firearm means the same as in Section 3(1) of the Firearms Act 1996.

Possible defences of a stealing offence

The best action after receiving a court summons for a stealing charge is to contact an experienced lawyer.

The lawyer can explore any of the following defences;

• You honestly believe you had a legal right to the property.
• You acted on behalf of another person, and you honestly believed that the person had legal rights to the property.
• You honestly believed that the person holding the property would agree to your using it.
• You claimed the property with the honest belief that there is no practical way to reach its owner.
• You purchased the property and acquired it in good faith from a person you believed had the right to transfer ownership to you.

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