Criminal law
Larceny and stealing charges in NSW
Larceny is the charge behind almost every stealing allegation in New South Wales. Most of these matters are worth a few hundred dollars, are finalised in the Local Court, and end without a conviction being recorded. That outcome is not automatic. It depends on what is put before the magistrate, and on whether anyone has looked at whether the elements are actually made out.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Our lawyers include former prosecutors. We appear in Local Courts across New South Wales and in the District Court.
On this page
What must be proved Penalties Which court Defences Related charges Sentencing options Common questions
What the prosecution has to prove
Larceny is stealing. There is no separate offence of theft in New South Wales and all of it is charged under the one provision. Five things have to be established, and each of them is capable of being contested.
- The property was capable of being stolen. It has to be something tangible with some value. Information is not property for this purpose
- It belonged to someone else, meaning someone else had lawful possession of it. That person does not have to be the owner
- It was taken and carried away. Any movement of the property is enough, however slight, but there has to be some
- The taking was without consent, dishonest, and without a claim of right made in good faith
- You intended, at the time of taking, to permanently deprive the owner of it. The intention has to exist at the moment of the taking. An intention formed later is not larceny, although it may be another offence
Intending to give it back is not automatically an answer. Where a person takes property, deals with it as their own, and intends to return it eventually, the law allows a conviction for larceny even so. The distinction that matters is between borrowing something and treating it as yours to use, and it is worth advice rather than assumption.
Dishonesty is measured by the standards of ordinary people, and by whether you knew that ordinary people would regard what you did as dishonest. It is a question for the court, not for the person who made the complaint.
Penalties for larceny
Larceny carries a maximum of five years imprisonment. That figure applies only where the matter is dealt with on indictment in the District Court. In the Local Court, where nearly all of these matters are finalised, the ceiling is two years and the fine depends on the value of what was taken.
| Where it is dealt with | Value of the property | Maximum penalty |
|---|---|---|
| Local Court | $2,000 or less | 2 years and a $2,200 fine |
| Local Court | More than $2,000, up to $5,000 | 2 years and a $5,500 fine |
| Local Court | More than $5,000 | 2 years and an $11,000 fine |
| District Court | Any value | 5 years |
Fines are set in penalty units, currently $110 each. The dollar figures above reflect that rate.
Which court, and why the value matters less than people think
The value of the property does not decide whether you can be charged. Larceny can be charged at any value, and matters involving a few dollars are prosecuted every day. What the value does is set the Local Court’s jurisdictional limit and determine who can move the matter upstairs.
- $5,000 or less. Only the prosecution can elect to take the matter to the District Court. In practice it almost never does
- More than $5,000. Either the prosecution or the defence can elect. There are occasions where election is worth considering, usually where the issue is one a jury is better placed to decide
The other consequence of value is practical rather than legal. A larger amount attracts a heavier sentence within the same range, and it makes restitution both more difficult and more important.
Where the property is worth $300 or less, police have a discretion to issue a $300 criminal infringement notice instead of charging. More on shoplifting and the $300 notice.
Defences to larceny
Claim of right
An honest belief that you were legally entitled to the property. The belief does not have to be reasonable and it does not have to be correct. It does have to be genuine, it has to be a belief in a legal entitlement rather than a moral one, and it has to extend to all of the property taken rather than part of it. Where it is made out it is a complete answer.
No intention to permanently deprive
You intended to return the property and did not deal with it as your own. Where that is genuinely the position it defeats the charge, but it is narrower than people expect.
Consent
The owner, or the person in lawful possession, agreed to you taking it. This arises more often than it sounds, particularly between family members, flatmates and former partners.
No dishonesty
Absent-mindedness, confusion, a genuine mistake about what had been paid for or what you were entitled to take. Not every unexplained taking is a dishonest one.
It was not you
Identification evidence, CCTV of variable quality, and accounts given after the event are all capable of being tested.
Duress or necessity
You acted under a threat of serious harm, or in genuine emergency.
Where a mental health impairment or cognitive impairment is involved, and the matter is in the Local Court, it may be able to be dealt with by way of a treatment plan rather than a conviction. That requires properly prepared evidence, obtained before the day of court rather than on it.
These offences are common among young people, particularly where a group is involved. Youth matters have their own procedures, their own diversionary options and their own consequences, and they benefit enormously from early advice. A guide for parents of youth offenders.
Sentencing options in NSW
Get advice before pleading guilty to anything. The court can impose any of the following, and a well-prepared sentencing is what produces the best available outcome.
Dismissal without conviction
No conviction recorded and no further penalty. The matter is finalised as you leave court.
Conditional release order
A bond, available with or without a conviction, supervised or unsupervised. The standard conditions are to commit no further offence and to appear if called on, and further conditions can include rehabilitation, abstinence, curfews and non-association or place restriction orders.
Conviction with no other penalty
A conviction is recorded but nothing further is imposed.
Fine
Can be imposed alone or with a bond, and is a conviction. Usually payable within 28 days, though the registry can extend the time or arrange a plan. Non-payment leads to enforcement, which can include licence and registration suspension.
Community correction order
More serious than a conditional release order, for up to three years, supervised or unsupervised, with conditions that can include community service, curfews, abstinence and rehabilitation.
Intensive correction order
A sentence of imprisonment served in the community under strict supervision, which can include home detention, electronic monitoring and curfews. It is not available for some offences. Breaches go to the State Parole Authority rather than the court and often result in serving the balance in custody.
A word on written pleas of guilty. Police sometimes hand you a form allowing you to plead guilty in writing without attending. It looks convenient and it is usually a mistake. On a written plea the magistrate has only the police fact sheet and your record, and knows nothing about you, your circumstances or anything mitigating. The penalty is often heavier as a result. It is also important that you agree with what the fact sheet says before it is tendered, because the court sentences on that document.
Restitution, where it can be made, carries more weight in property matters than in most. So does a genuine explanation of why it happened.
Common questions
Will a larceny charge give me a criminal record?
Not necessarily. The court can dismiss the matter without recording a conviction, and for a first offence involving a modest amount that is a realistic outcome. It is not automatic, and it becomes much harder to obtain once a plea has been entered without preparation. What is put before the magistrate is what decides it.
I honestly thought the property was mine.
That is a claim of right, and where it is made out it is a complete answer. The belief does not have to be reasonable or correct, but it has to be genuine, it has to be a belief in a legal entitlement rather than a sense that you were owed something, and it has to cover all of what was taken. It comes up constantly in disputes between former partners, flatmates and family members.
I was going to give it back.
That can be a defence, but it is narrower than people assume. Where you took the property and dealt with it as your own, the law permits a conviction even though you intended to return it eventually. The question is whether you treated it as yours, not whether you meant to keep it forever.
Does the value of the property decide whether I get charged?
No. Value sets the maximum fine the Local Court can impose and determines whether a $300 police notice is available. It does not determine whether larceny can be charged. A person can be charged over property of any value.
The police want me to come in for an interview. Do I have to?
You have to provide your name and address when lawfully required to. Beyond that you are not obliged to answer questions, and in stealing matters the account given at interview is frequently what supplies the dishonesty element the prosecution would otherwise struggle to prove. Get advice before you attend.
Can a larceny matter be taken to the District Court?
Yes. Where the value is $5,000 or less only the prosecution can elect, and it rarely does. Above $5,000 either side can. The five year maximum applies only there. In the Local Court the ceiling is two years regardless.
What should I bring to a first appointment?
The court attendance notice or infringement notice, the police fact sheet, any bail conditions, and anything the complainant has sent you. If there is CCTV, a receipt or a message thread, bring it. If you have none of it, come anyway.
A dishonesty conviction costs more than the property did
These matters affect employment, licensing and travel long after the fine is paid, and a non-conviction outcome is available far more often than people assume. Get advice before you plead to anything.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153. We appear in Local Courts across New South Wales and in the District Court. Courts we appear in.