Larceny

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Larceny is the act of theft of property. It is still governed by the principles of the common law, whilst the Crimes Act only covers the maximum penalty. The principles governing the offence are as follows (: Ilich[1]):

  • Actus reus:
    1. The property was capable of being stolen - the Property must be tangible and moveable (not land), and have some value even if minimal.
    2. The property belonged to another - Either through actual ownership or possession.
      • Possession consists of physical control + intention to control.
      • Constructive possession applies (in the property of employee: Williams v Phillips, on one's enclosed land: Hibbert v McKiernan).
        • Unlawful possession is still possession: Anic, Stylianou and Suleyman.
    3. The property was taken and carried away by the accused (asportation).
      • Very easy to prove - any movement of goods with intent to steal them: Wallis v Lane, Potisk.
    4. Without the consent of the possessor.
      • Does not mean contrary to or against the will, but simply without it: Middleton; Kennison v Daire.
      • Dealing with property in breach of a license constitutes without the consent: Kolosque v Miyazki.
  • Mens rea:
    1. An intention to permanently deprive.
      • Alternatively, an intention to appropriate the goods or exercising ownership of the goods and dealing with them as their owner: Foster.
      • If intention to return is conditional, there will be intention to permanently deprive: Hooker; Sharp v McCormick.
      • If the value of the property is exhausted, there will be intention to permanently deprive: Lloyd.
      • If the nature of the property is changed, there will be intention to permanently deprive: Weatherstone.
    2. Defendant was acting fraudulently/dishonestly. The following tests have been used:
      1. Feely test (English): dishonesty has (1) an everyday meaning and (2) a moral basis. Affirmed in Peters (Australia, but not NSW).
      2. Weatherstone (NSW): dishonesty involves means morally wrongful/involving a moral obloquy. Affirmed in Baartman (NSW - probably the dominant test).
  • 'Defences': Claim of right - there is no dishonesty if the accused honestly believed that s/he has a legal claim of right to the property.
    • Accused has evidentiary burden, prosecution has to disprove the belief in the claim of right beyond reasonable doubt).
    • Claim of right must be a genuinely held belief as to the legal (not just moral) right to all the property or money taken: Fuge
    • Claim of right does not need to be reasonable, but cannot be a mere pretense: Fuge.
  • Max sentence: 5 years imprisonment: s 117.

This article is a topic within the subject Criminal Laws.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 907-922.

Defining larceny

[2] As larceny is a common law offence in NSW, the Crimes Act 1900 merely stipulates the maximum penalty of 5 years imprisonment in s 117.

Ilich describes larceny as a crime against possession of property, the elements of the offence being:[3]

  • Actus reus:
    • There is property capable of being stolen (ie, tangible personal property).
    • That property is in the possession of a person other than the defendant (referred to as belonging to another).
    • The property is taken and carried away by the defendant (referred to as asportation).
    • The taking is done without the consent of the possessor (sometimes loosely referred to as the owner).
  • Mens rea:
    • The property is taken with an intention to permanently deprive.
    • The property is taken without any claim of right to the property.
    • The property is taken fraudulently (ie, dishonestly).

The historical roots of larceny

[4] George P Fletcher identifies a shift from larceny based on protecting social relations to larceny based on protecting private property:[5]

  • He identifies the concept of “possessorial immunity” whereby consensual transaction of property prevents intervention by the criminal law.
  • The traditional approach to larceny was based on a distinction between the public and the private sphere.
  • The modern approach recognises two elements of harm and intent. The harm is the unlicensed acquisition of another’s property. The intent is the intent to effect this harm.
  • Modern law of theft offences verges on treating every deprivation of property as a public harm.
  • In the traditional view the thief upset the social order not only by threatening property but by violating the general sense of security and well-being of the community.
  • The “dissolution of these relational aspects” has lead to the modern approach.
  • The emerging school of protectionist criminology measured punishment against the social interest at stake and the strength of the motive inducing criminal behaviour.

Things capable of being stolen

In general terms larceny is restricted to chattels (tangible, moveable property).

Land

[6] Under Australian law, land is not capable of being stolen. However, those who occupy land without permission etc can be sued for trespass.

  • The question of whether land “theft” should be regulated by the criminal law is particularly relevant to Australia given the forced taking of lands of the Indigenous people by the British colonisers.

See Textbook p 911 for reference to theory sources.

Fixtures

[7] The doctrine that excludes land from larceny includes things attached to the land, such as houses and letterboxes (called fixtures), things growing out the land, such as trees and crops, and things forming part of the land such as minerals and soil.

  • According to the doctrine of fixtures, anything that is attached to land and that in all the circumstances is intended to be attached permanently to the land loses its nature as an independent form of property and becomes constructively part of the land.
  • Difficulties where the property was initially ‘attached’ to the land but broken off or removed by the defendant are addressed by the Crimes Act 1900 (ss 139 and 140 and ss 513-521A).
    • According to s 139, removing fixtures counts as larceny.

Animals

[8] Wild animals cannot be the object of larceny unless someone else has previously assumed possession of them either through capturing or killing them.

  • At common law, domesticated farm animals could be stolen from their possessor.
    • The Crimes Act 1900 ss 126-131 reenacted these offences which define animals as “cattle” under s 4.
  • Older cases hold that not all captured or killed wild animals were protected by larceny, only those that are fit for eating or not of a “base nature”. Consequently, ss 132-133, 502-512 prohibit stealing of dogs animals or birds ordinarily kept in confinement and fish in private waters or ponds.

Historical perspectives

[9] The offence of larceny was ‘brutally’ expanded during the time of the Industrial Revolution.

Michael E Tigar concludes that:

  • The new offences of larceny were aimed at suppressing and eliminating vestigial systems of social relations based upon principles other than property and contract.
  • The 1723 Black Act was primarily aimed at protecting the interests of emerging capitalists.
  • Parliament legislated away the means by which many people survived, providing a substantial encouragement to leave the land and swell the ranks of the urban proletariat.

Tangible property

[10] “Choses” in action cannot be stolen:

  • Whilst it is possible to steal physical paper money, as in a bank robbery, it is not possible to be guilty of the common law offence of larceny for illegally removing money from a bank account.
    • The money does not exist in a physical sense but merely as a chose in action – a debt owed by the bank to the rightful owner of the account.[11]
  • Similar complications arise with cheques, (see eg, Parsons[12]).
  • In most of these cases the facts will disclose a fraud offence.
  • s 134 of the Crimes Act 1900 enables the stealing, embezzling or destruction of 'valuable securities' (defined in s 4) to be charged as larceny:
  • The physical nature of property can be slight (eg, gas can be stolen from a pipe).[13]
  • Electricity and electronic data are not forms of property and cannot be stolen. Abstraction of electricity is prohibited under the Electricity Supply Act 1995 (NSW).
  • Data has been held not to constitute a form of property.[14]
    • Misuse of data held in computers is prohibited under sui generis offences in Pt 6 of the Crimes Act 1900.
  • “Intellectual property” predominantly consists of various forms of choses in action created by Commonwealth statute. The statutes contain criminal and civil penalties for infringement.

In the possession of another

[15] Mere possession of property is sufficient to enable a person to assert a right to prevent any other person taking the possession from them, unless that other person can establish they had possession at a prior time and did not consent to the loss of such possession (ie, mere possession of an item gives a person protection against others).

'Possession' is comprised of two elements:

  1. A degree of physical control of the property.
  2. An intention to maintain that physical control.

Note how the elements of possession are related to the actus reus elements of larceny:

  1. The thief has “taken and carried away” (actual control).
  2. The thief acted with “intention to permanently deprive” (intention to control).

In this way, the thief 'dispossesses' the possessor in regards to both the elements. The only way courts can ascertain whether property belongs to another is to apply the civil law of property.

  • Mere control of property without the intention to control (custody) or mere intention to control without actual or prior control of the property are not forms of property right.
  • In Anic, Stylianou and Suleyman,[16] the court held that it was possible to ‘steal’ property from a person who had it unlawfully in their possession.
    • Possession of drugs was still an offence but drugs constituted “tangible personal property having some value” and were covered by larceny.
  • Property is rarely considered to be owned by no one or ‘abandoned’. Property found on a person’s enclosed land is considered to be theirs even if they had no knowledge of it. [17]
  • In order to show that property belongs to another, less than actual possession may be sufficient; property in the possession of an employee or servant may be held to be constructively in the possession of the employer or master.[18]

Asportation: taking and carrying away

[19] As thieves are often caught in the act of stealing property, very minimal actions are sufficient to prove asportation.

  • In Wallis v Lane,[20] it was held that “any movement of goods with an intent to steal them is sufficient to constitute asportation... if there is removal of the property from the spot where it was originally placed with intent to steal.”
  • In Potisk,[21] where the defendant retained money originally obtained by mistake, mere intention without asportation was not considered sufficient.

Taking without the consent of the possessor

[22] According to Middleton,[23] “without consent” does not mean contrary to or against the will, but without it (this is how a finder or chattel may be guilty of larceny).

This approach was affirmed in Kennison v Daire,[24] where it was held that an ATM could produce money without the consent of the bank.

Implied licence

[25] If the prior possessor of the property passes it on with consent there can be no larceny. However, if the possessor only permits temporary custody of the property through a licence but the property is dealt with in breach of the licence, an asportation without consent may have occurred.

  • A common example is the implied licence existing in retail stores which allows customers to take temporary custody of property (to try it, take it to the counter etc) but this licence is revoked or breached when there is intention to damage the goods or not to pay for them (see Kolosque v Miyazki).
  • When lost property is found, the prior possessor is deemed to consent to the finder taking possession in order for the property to be returned (see Thurborn).

Intent to permanently deprive

[26] As per Holloway,[27] the intention must be to permanently deprive, therefore difficulties may arise when the defendant takes property but claims an intention to return it.

This may lead to an alternate charge of trespass, as in Phillips and Strong.[28]

Intention to return the property

[29] More contentious is where a person takes another’s property and pawns it, in the hope that when their finances improve that can redeem the property and return it. The Crimes Act 1900 specifically disallows this defence in s 118.

This was discussed in Foster:[30]

  • Facts: the defendant had taken his friend’s gun, allegedly to show his father.
  • Held: “If the intention is to deprive the true owner of possession for a limited time, larceny is not made out. But if the intention of the taker is to exercise ownership of the goods, to deal with them as his own, an intention to later restore the property in the goods will not prevent the original taking being larcenous.”

An intention to borrow “fungibles” such as money is not available as evidence that there is not intention to permanently deprive because the actual coins or notes are not returned, merely their equivalent.[31]

Conditional appropriation?

[32] Intention to permanently deprive will be found if the intention to return is conditional.

  • “Refund fraud” cases are a good example of this, such as the case of Lowe v Hooker,[33] where the defendant stole goods from stores and then attempted to return them to gain a refund.
  • In the Victorian case of Sharp v McCormick,[34] an intention to permanently deprive was found when a employee took home car parts to see if they fit his car (the return of the parts, if they didn’t fit, was conditional).

Exhausting the virtue of the property

[35] Even if the property is only intended to be taken for a short period of time, if the true value of the property consists in it being used in a particular way (eg, limited number of uses or time during which it can be used), then lack of intention to deprive permanently will not prevent larceny from being charged.

  • For example, if a ticket is returned the next day it may be useless.
  • In Lloyd,[36] the defendant had set up a film pirating network where films were taken from cinemas for a few hours to be copied. “The practical value of the films to the owners ha[d] not gone out of the article” because they could still be played to audiences etc.

Changing the nature of the property

[37] If the property is changed or damaged despite intention to return, larceny may be committed. In Weatherstone,[38] the defendant soldered metal rods, with the affect that they were too changed to be used by their original possessor.

End

This is the end of this topic. Click here to go back to the main subject page for Criminal Laws.

References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. (1987) 162 CLR 110.
  2. Textbook, pp. 907.
  3. (1987) 162 CLR 110.
  4. Textbook, pp. 907-10.
  5. Fletcher, G P, “The Metamorphosis of Larceny” (1976) 89(3) Harvard LR 469.
  6. Textbook, pp. 910-1.
  7. Textbook, pp. 911-2.
  8. Textbook, pp. 912.
  9. Textbook, pp. 912-3.
  10. Textbook, pp. 913-4.
  11. Croton (1967) 117 CLR 326.
  12. (1999) 195 CLR 619.
  13. White (1853) Dears 203.
  14. Oxford v Moss (1978) 68 Cr App R 183.
  15. Textbook, pp. 914-6.
  16. (1993) 61 SASR 223.
  17. Hibbert v McKiernan [1948] 2 KB 142.
  18. Williams v Phillips (1957) 41 Cr App R 5.
  19. Textbook, pp. 916.
  20. [1964] VR 293.
  21. (1973) 6 SASR 389.
  22. Textbook, pp. 916-8.
  23. (1873) LR 2 CCR 38.
  24. (1986) 60 ALJR 249.
  25. Textbook, pp. 918.
  26. Textbook, pp. 918-9.
  27. (1848) 1 Den 370.
  28. (1801) 2 East PC 662.
  29. Textbook, pp. 919-20.
  30. (1967) 118 CLR 117.
  31. Williams [1953] 1 QB 660; Feely [1973] 1 QB 530.
  32. Textbook, pp. 920.
  33. [1987] Tas R 153.
  34. [1986] VR 869.
  35. Textbook, pp. 920-1.
  36. [1985] 1 QB 829.
  37. Textbook, pp. 921-2.
  38. (1987) 8 Petty Sessions Review 3729.
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