The offence of theft.

Updated: Apr 18

What the prosecution must prove. Penalties & defences.


Most of the property offences heard in the Magistrates' Court and County Court are prosecuted under the Crimes Act 1958 (Vic). The Crimes Act covers the field for most of our State property offences.


Our courts hear prosecutions for property offences contained in Federal legislation, such as taxation offences, corporate crime, and welfare fraud, to name but a few.


The quantum of property said to have been stolen, or otherwise misappropriated will determine the Court that will hear and determine the offence. Property offences of $100,000 or less can be heard in the Magistrates' Court. Offences involving an alleged quantum greater than $100,000 will be heard in the County Court.


Handle Stolen Goods is often utilized by the police, as an alternative offence to theft given the common element of stolen goods and dishonesty.


Theft - Section 74 of the Crimes Act 1958


The prosecution must produce evidence that establishes the following elements beyond reasonable doubt:


– a person has dishonestly appropriated property.

– the property appropriated belongs to another person.

– property was appropriated intentionally and to permanently deprive the other person of it

– the person appropriating the property did so without lawful excuse


Section 73 of the Act provide a further explanation as to the element of dishonesty.


Penalties


Under section 74 of the Crimes Act 1958 (Vic) a person found guilty of Theft is liable to a penalty of imprisonment for 5 years (maximum).


Sentencing outcomes


The offence of Theft is an indictable offence and where the property in question is less than $100,000 the case will be heard in the Magistrates’ Court.


Where the property value exceeds $100,000 jurisdictional limit, the case will be heard in the County Court.


The sentencing outcome for an offence of Theft will vary greatly from case to case depending upon the alleged criminality.


Despite the charge being an indictable offence, without conviction outcomes are available. As is the possibility of a Court diversion. Much depends upon the seriousness of the offending before the Court. The gravity of an offence is frequently but not exclusively determined by the quantum of property stolen or misappropriated.


The sentencing options available to the court for the offence of theft include:


–Diversion (for very minor offending)

–Unconditional dismissal (section 76 bond)

–Adjourned undertaking

–Fine

–Community Correction Order

–Imprisonment


As a guide the Sentencing Advisory Council has published the top 4 sentencing outcomes for the offence of theft (except for theft from shop) when it was heard and finalised in the Magistrates’ Court during the period 2016 – 2019:


Imprisonment – 44%

Community Correction Order – 25.5%

Fine – 14.9%

Adjourned undertaking/discharge/dismissal.


Defences

An allegation of theft may be defended based on a factual dispute as to whether the prosecution can prove beyond reasonable doubt any of the elements set out above. An element common to most property offences is dishonesty, and so in some cases an accused person may argue that they property was taken, but that they had a legal right do so. That is a defence might arise as to ownership of the property.


Call our office, make an appointment, and get advice

The penalties that can be imposed for the offence of Theft can vary greatly. Where the property value is at the lower end (say for example a theft from shop offence), a diversion may be available, especially for young first-time offenders.


If you are facing an allegation of theft, call our office on (03) 9668 7600 and we will arrange a free case assessment for you.


Written by Shaun Pascoe, Director, Pascoe Criminal Law






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Level 8
488 Bourke Street
Melbourne, Vic 3000

Ph: (03) 9668 7600

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