Criminal law
Shoplifting charges in NSW
Most people who come to us about shoplifting have never been in trouble before, took something worth less than a hundred dollars, and cannot understand how it has turned into a court date. The good news is that a great many of these matters end without a conviction, and a substantial number never reach a court at all. Neither of those happens by itself.
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.
There is no offence called shoplifting
Retail theft is charged as larceny, the same offence that covers all stealing in New South Wales. The prosecution has to prove that you took and carried away property belonging to the store, without consent, dishonestly, and intending at that moment to permanently deprive the store of it.
The element that fails most often is the last one, combined with dishonesty. Self-service checkouts, an item left in the bottom of a trolley, a child putting something in a bag, a partial scan, genuine distraction. None of those is stealing, and all of them generate charges. More on the elements of larceny.
The $300 notice, and why you may not go to court at all
Where the value of the property does not exceed $300, police have a discretion to issue a criminal infringement notice carrying a $300 penalty instead of charging you and sending you to court.
- Paying it is not a plea of guilty and no conviction is recorded
- It does not appear on the criminal record produced for employment or travel checks, and you can still answer no to questions about convictions
- Police keep their own record of notices issued, which they can see later. A second incident is much more likely to be charged
- You can elect to have the matter heard by a court instead. That is occasionally right where the allegation is genuinely disputed, but it exposes you to a conviction the notice would have avoided
Whether a notice is issued is a police decision, not something you can apply for, and it turns on the value, your record and how the matter was handled at the store. More on criminal infringement notices.
What store security can and cannot do
Loss prevention officers are not police and their powers are those of an ordinary member of the public.
- They can detain you where you are in the act of committing an offence or have just committed one, and they must then hand you to police as soon as practicable. They cannot hold you indefinitely while they decide
- They cannot search you or your bag without your consent. A request to look in your bag is a request. Agreeing to it is what makes the search lawful
- They cannot require you to answer questions, sign anything, or make a written admission
- They cannot ban you and demand money in exchange for not calling police. Any such proposal is worth telling us about
In practice, most shoplifting prosecutions rest on CCTV, the loss prevention officer’s statement, and whatever was said in the back room before police arrived. The last of those is the part people have control over and routinely give away.
Penalties
| How it is dealt with | Value | Maximum penalty |
|---|---|---|
| Criminal infringement notice | $300 or less | $300 penalty, no conviction |
| 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 |
Those are maximums and they bear almost no relationship to what actually happens in a first offence involving a low value item. What does happen, routinely, is a dismissal without conviction or a conditional release order. What decides which is the material put before the magistrate.
A letter from the store demanding money is a separate matter. Large retailers send civil recovery demands to people accused of shoplifting, often for sums well beyond the value of the goods and sometimes before any charge is laid. That is a civil claim made by the retailer. It is not part of the criminal proceedings, paying it does not resolve a charge, and refusing to pay it does not make the charge worse. Take advice before responding, because what you write in reply can end up in the police brief.
Why a $40 matter is worth defending properly
The penalty is rarely the problem. The conviction is.
- Employment. A dishonesty conviction is disqualifying in any role involving money, stock, client funds or trust, and it is the category of offence employers screen for most closely
- Professional registration and licensing. Nursing, teaching, financial services, security, real estate, aged care and childcare all require disclosure, and a dishonesty finding carries weight out of proportion to the amount
- Visas and citizenship. Character requirements apply, and a conviction has to be declared
- Travel. Some countries, the United States in particular, treat convictions involving dishonesty differently from other offences
- Students and apprentices. Placement providers and universities frequently require a clear check
This is the reason a matter worth less than a tank of petrol is worth preparing properly, and the reason not to plead guilty by post to get it over with.
Defences and arguments
No dishonest intention
You forgot, you were distracted, the item was under the trolley, the scan did not register, you intended to pay. The prosecution has to prove you intended to steal at the moment you took it, and CCTV of your conduct before and after is often as helpful as it is harmful.
You did pay, or partly paid
Receipts, bank records and till data can resolve a matter entirely. These are worth obtaining early because store records are not kept forever.
It was not you
Identification from poor quality footage, or from a loss prevention officer recalling an incident days later, is evidence to be tested rather than accepted.
Mental health and cognitive impairment
Where a mental health impairment or cognitive impairment is involved, the Local Court can deal with the matter by way of a treatment plan rather than a conviction. This is a genuinely common and genuinely available outcome in retail matters, and it needs evidence prepared beforehand.
Claim of right
An honest belief that you were entitled to the item, for example in a dispute over a refund or a faulty product. It has to be a belief in a legal entitlement, not a sense of having been treated badly.
Duress
You acted under a threat of harm. This arises in matters involving young people and in coercive relationships more often than it is raised.
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. Rarely relevant to a retail matter, but available where there is an extended history.
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, and the chance of a non-conviction outcome is materially reduced.
Common questions
Will I get a criminal record for shoplifting?
Not necessarily. A $300 notice produces no conviction at all. If you are charged, the court can dismiss the matter without recording a conviction, and for a first offence involving a low value item that is a realistic outcome. It is not automatic, and it is much harder to achieve once a plea has gone in without preparation.
I forgot to scan it. Is that really a crime?
Not if it is true. The prosecution has to prove you intended to steal the item at the moment you took it, and forgetting is not that. Self-service checkouts produce a large share of these charges and the footage often supports the explanation rather than undermining it. Do not assume the case is unanswerable because you were stopped.
Security took me into a back room and asked me to sign something.
You were not obliged to sign anything or answer anything. Whatever was signed will be handed to police and tendered, so tell us exactly what happened and what you said. Store security can detain you if you have just committed an offence, but they cannot search your bag without your agreement and cannot require you to make admissions.
The store sent me a letter demanding several hundred dollars.
That is a civil demand from the retailer, entirely separate from anything happening in the criminal courts. Paying it does not make a charge go away and refusing does not make the charge worse. Get advice before replying, particularly while the criminal matter is unresolved.
Can I be banned from the store?
Yes. A retailer can refuse entry to its premises and can ask you to leave, and returning after being told not to can amount to a separate offence. That is a decision for the store and it happens whether or not you are charged or convicted.
Do I have to tell my employer?
It depends on your contract, your industry and whether you hold a licence or registration. Some roles require disclosure of a charge, not just a conviction. This is worth working out early, because getting it wrong can cause more damage than the charge itself.
My teenager has been charged. What happens?
Young people are dealt with under a separate scheme with warnings, cautions and youth justice conferences available before a court is involved at all. Whether those are offered depends partly on what is said and done early. A guide for parents of youth offenders.
What should I bring to a first appointment?
The court attendance notice or infringement notice, the police fact sheet, anything the store has sent you, and any receipt or bank statement covering the day. If you have none of it, come anyway.
One mistake should not follow you around
Shoplifting matters are among the most winnable and among the most damaging to leave to chance, because it is the conviction rather than the penalty that does the harm. Speak to us before your first court date.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153. Courts we appear in.