Stealing – what is it and what are the penalties?
Stealing, it sounds simple doesn’t it? Don’t take something that is not yours or you will be punished.
This is far from the case. Stealing in Queensland is a criminal offence that is dealt with seriously by the courts and when you look at the offence in more detail, you will find that it is complex and can arise in a wide range of circumstances.
What is the definition of stealing? What is the penalty for stealing? What court deals with stealing? These are questions that our team receive frequently when advising those charged with stealing offences. This article aims to break down how the law defines stealing, the elements of stealing, how the court will deal with the charge, and potential penalties following conviction.
What the law says
Section 391 of the Criminal Code Queensland relates to the offence of Stealing, stating:
(1)A person who fraudulently takes anything capable of being stolen, or fraudulently converts to the person’s own use or to the use of any other person anything capable of being stolen, is said to steal that thing.
(2)A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if the person does so with any of the following intents, that is to say—
(a)an intent to permanently deprive the owner of the thing of it;
(b)an intent to permanently deprive any person who has any special property in the thing of such property;
(c)an intent to use the thing as a pledge or security;
(d)an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;
(e)an intent to deal with it in such a manner that it can not be returned in the condition in which it was at the time of the taking or conversion;
(f)in the case of money—an intent to use it at the will of the person who takes or converts it, although the person may intend to afterwards repay the amount to the owner.
What does this actually mean?
The first key element for the prosecution to prove is that something was stolen “fraudulently”. Put simply, fraudulently means “dishonestly”, and it not restricted just to depriving someone of a right or advantage.
The second element, “anything capable of being stolen” means anything that is the property of any person is capable of being stolen if it is moveable, or capable of being made moveable, even if it is made moveable in order to steal it.
With respect to conversion, the law requires not just passive possession, but an act of physically dealing with items in a way that is inconsistent owners rights.
The prosecution must establish that the items in question are items owned by someone. If the property belongs to no one it cannot be stolen. Ownership must be proved either in a named person, or if the prosecution is unable to establish the identity of the owner, then in a “person unknown”.
When is the act of stealing complete?
The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.
When an offence of stealing has been completed is always a question of fact based on the circumstances of each particular case.
What if the items are found?
Property abandoned by an owner cannot be stolen. When a converted item has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at that time the person taking or converting the item does not know the owner, and believes on reasonable grounds that the owner can not be discovered.
This does not mean that a person can assume items have been abandoned simply because they’re unattended. If you take possession of unattended property, you could still be charged by the police.
Instead, that person must take steps to return the property to its true owner. This means that if you find property that would belong to someone else, such as a mobile phone on a park bench, you should take it to your local police station.
The police, upon an application, may later return the items to you if they’re unable to locate the owner of the items.
What about kerbside collections?
If items are placed outside houses for kerbside collections, you should still take reasonable steps to firstly, identify the true owner of those items and secondly find out whether the items have been abandoned.
You should not assume that all items placed outside for kerbside collection have been placed kerbside for that purpose. If you make this assumption, and the true owner claims that the items had not been abandoned, you could still be charged by the police.
Kerbside collections are facilitated by the local City Council, who would arguably be the destined owner of the unwanted goods. As such, steps should be taken to liaise with the local Council to determine whether kerbside cleanout rubbish can be taken or left for the Council.
Which court will deal with a charge of stealing?
If the items allegedly stolen are valued at less than $30,000 or the offender pleads guilty, the charge must be dealt with summarily (i.e. in the Magistrates Court).
If, however the value of the items exceeds $30,000 and the person pleads not guilty, or the item in question is a firearm, and the firearm is stolen with intent to commit an indictable offence, and that particular offence must be dealt with on indictment, then the matter must proceed to the District Court.
What is the penalty for stealing?
As with most offences, the penalty imposed for stealing will depend on the circumstances of each case.
If convicted without a circumstance of aggravation, or in a case that is not considered to be a “special case”, the maximum penalty is 5 years imprisonment.
What is a “special case”?
The Criminal Code lists a range of circumstances considered to be special cases. These include:
- Stealing wills – if the thing stolen is a testamentary instrument, the offender is liable to 14 years imprisonment.
- Stealing stock – liable to 5 years imprisonment (or longer depending on the value of the stock).
- Stealing from the person – stealing goods in transit – the offender is liable to imprisonment for 10 years.
- Stealing by persons employed in the public service – liable to 10 years imprisonment
- Stealing by clerks and servants – liable to 10 years imprisonment
- Stealing by directors or officers of companies – liable to 10 years imprisonment
- Stealing by agents – liable to 10 years imprisonment
- Stealing property valued at more than $5,000 – liable to 10 years imprisonment
- Stealing by tenants or lodgers (if the value exceeds $1,000- liable to 10 years imprisonment
- Stealing of a vehicle – liable to 14 years imprisonment
- Stealing by looting – liable to 10 years imprisonment
- Stealing a firearm for use in another indictable offence – liable to 14 years imprisonment
What is the difference in penalty for a first offence and subsequent offence?
If a person has been convicted upon indictment (i.e. in the District Court), or been convicted twice summarily (i.e. in the Magistrates Court), that person is liable to 10 years imprisonment.
Will a conviction be recorded?
The Penalties and Sentences Act provides discretion to the court as to whether a conviction should be recorded or not and involves consideration of a number of factors.
For further information on this issue please click here.
What is the takeaway?
No two cases of stealing are the same.
While this article is intended to provide an overview of the offence of stealing, it is not to be considered legal advice and may not cover important aspects that apply to individual circumstances.
It is critical if you’re charged with stealing you obtain early and accurate advice so that you’re aware of the allegations against you, the penalties if convicted and your options.