Stealing

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STEALING

Pursuant to s.378 of the Criminal Code 1913 (WA) (the Code), a person who steals anything capable of being stolen commits a crime.

In this section, unless otherwise stated the relevant legislation is the Criminal Code 1913 (WA).  This Code is found in Appendix A of the Criminal Code Act Compilation Act 1913 (WA).

This section sets out the various elements of the crime of Stealing, the definition of what is capable of being stolen, which courts hear charges of Stealing and the maximum penalties for the charge of Stealing.  The maximum penalties as set out in the table vary according to such matters as the thing stolen, the value of the thing stolen or the circumstances of the stealing.

Elements of the Crime of Stealing

Pursuant to s.371 of the Code, a person commits the crime of Stealing if they:

  • Fraudulently take anything capable of being stolen; or
  • Fraudulently convert any property of someone else to their own use or the use of any other person.
    • “Property” includes “any description of real and personal property, money, debts, bank credits, and legacies and all deeds and instruments relating to or evidencing the title or right to any property or giving a right to recover or receive any money or goods and also includes not only such property as has been originally in the possession or in the control of any person but also any property in which or for which it has been converted or exchanged and anything acquired by the conversion or exchange, whether immediately or otherwise.”

Taking or conversion for the purpose of Stealing can be fraudulent even if it was done without secrecy or attempted concealment.

If a person has converted property to their own use, it is not relevant whether the property was taken for the purpose of converting it or for some other purpose.  It is also not relevant whether the person who converts it has a power of attorney in relation to the property or whether they are otherwise authorised to dispose of the property.

The crime of Stealing is not complete until the person who takes or converts the property to their own use actually moves or otherwise deals with the property.  This means there must be a positive step by a person before they can be said to have taken or converted an item.

If a person:

  • Has a special property or interest in anything capable of being stolen;
  • Is the owner of a thing in which some other person has a special property or interest;
  • Is the lessee of a thing;
  • Is one of two or more joint owners of a thing; or
  • Is a director or officer of a corporation, company or society which is the owner of a thing;

 and they take or convert that thing in such circumstances as would otherwise amount to Stealing, that person is held to have stolen the thing regardless of any of these factors.

Special property

“Special property” includes having a lien (claim) upon the property or any right arising from or dependent upon holding possession of the property.

Theft by Finding

If a person finds property which has been lost by someone else, pursuant to s.371(5) of the Code, the person can still commit the offence of Stealing.

The person finding the property will not be Stealing if they:

  • Do not know who the owner of the property is; and
  • Believe on reasonable grounds that the owner cannot be located.

Whether a person has taken reasonable steps to ascertain who the owner of found property is will depend on the circumstances of the finding and what opportunities of identifying the owner would have been available to the person finding the property.  Whether any attempts by the finder to identify the owner are “reasonable” will be judged by whether a “reasonable person” would think the attempts were reasonable. It is not merely the opinion of the person finding the property which is taken into account.

Attempted Stealing and Inciting Another Person to Steal

Attempted Stealing

A person can also commit a crime of Attempted Stealing.  S.552 of the Code applies to any indictable offence.  In the case of Stealing; however, the penalty provisions which are set out in s.552 of the Code do not apply.  Refer to Penalties for Stealing for the relevant penalties for Attempted Stealing.

A person is said to have attempted to commit an offence when they begin to put their intention into execution by doing an act or acts which are more than merely preparatory to the commission of the actual offence.  Whether the acts done by a person are sufficient to establish that they attempted to commit the offence will depend on the circumstances of the matter as a whole.

A person has still attempted to commit an offence even if their attempt is prevented by circumstances beyond their control.  This also applies if the commission of the actual offence would have been impossible because of factors which the person was not aware of.

If the actions of someone are sufficient to be considered an attempt to commit the offence, they have still committed the offence even if they decide not to further pursue the commission of the actual offence.

Inciting Another Person to Steal

A person “incites” another to commit an offence if they solicit or attempt to persuade that other person to commit an offence. 

Pursuant to s.553 of the Code, a person who incites another person to commit any indictable offence is guilty of a crime.  Stealing is such an indictable offence; however, the penalty provisions which apply as set out in s.553 of the Code do not apply.  Refer to Penalties for Stealing for the relevant penalties for Inciting Another Person to Steal.

What is Fraudulent taking or Converting to Use?

Pursuant to s.371(2) of the Code, a person is deemed to have fraudulently taken or converted any property if they do so with any of the following intentions:

  • The person intends to permanently deprive the owner of the property or part of the property;
  • The person intends to permanently deprive another person of special property the other person has in the thing or property:
  • The person intends to use the property as security;
  • The person intends to part with it conditionally and the person may be unable to meet that condition;
  • The person has an intention to deal with the property in such a way that it cannot be returned in the same condition; or
  • The person takes money and intends to use it even if the person intends to repay the money to the owner.

What is Capable of Being Stolen?

Pursuant to s.370 of the Code, property or “things” that are capable of being stolen are:

  • Every moveable inanimate thing which is the property of any person;
    • An immoveable object which is made moveable in order to steal it is capable of being stolen as soon as it has been made moveable;
  • Any tame animal which is the property of any person;
    • An exception to this general rule is pigeons.  Tame pigeons are not capable of being stolen unless they are in a pigeon-house or on their owner’s land;
  • Animals not normally found in the wild in Western Australia but which are wild by nature and are being kept in confinement.  They are still capable of being stolen if they have escaped from that confinement;
  • Wild animals which are ordinarily found in the wild in Western Australia which are the property of a person and kept in confinement.  If such an animal escapes from confinement it is still capable of being stolen but only whilst it is being actually pursued;
  • Animals which are the property of any person which are being reared by aquaculture in a place that is the property of or under the control of the person;
  • The bodies of dead animals in the wild.  However, a wild animal that is alive is not capable of being stolen; or
  • Anything produced by or forming part of an animal that is capable of being stolen.
Confinement

An animal is in confinement, as defined in s.370 of the Code, if it is in a den, cage, sty, tank or other small enclosure, or otherwise placed so it cannot escape and the owner can take possession of it whenever they want to.

Animal

The term animal, as defined in s.370 of the Code, includes any living creature (other than humans) and any living aquatic organism.

Theft of Motor Vehicles

The crime of Stealing in relation to motor vehicle does not require the elements in s.371 of the Code to be proved.

Pursuant to s.371A, a person commits the crime of Stealing if they do any of the following without the consent of the owner or person in charge of a motor vehicle:

  • Use the motor vehicle;
  • Takes the motor vehicle for the purpose of using it; or
  • Drives or otherwise assumes control of the motor vehicle

Which Courts are Stealing Offences Heard in?

The crime of Stealing is an indictable offence.  This means it is heard on indictment which requires that it be dealt with in the District Court.

Pursuant to s.426 of the Code, certain offences of Stealing can; however, be dealt with summarily in the Magistrates’ Court.  The following offences are able to be dealt with summarily:

  • Stealing, attempted Stealing or inciting another person to steal in circumstances where the maximum penalty does not exceed 7 years; or
  • Stealing, attempted Stealing or inciting another person to steal where the thing is stolen from the person of another; or
  • Stealing, attempted Stealing or inciting another person to steal where the person is employed in the Public Service and the thing stolen is the property of Her Majesty or came into the possession of the person by virtue of that employment; or
  • Stealing, attempted Stealing or inciting another person to steal where the person is a clerk or servant and the thing stolen is the property of his employer, or came into the person’s possession on account of their employer.

Penalties for Stealing

The maximum sentences that courts can impose in relation to Stealing can be found in s.378 of the Code.  The table below sets out these penalties.

OffenceMaximum Penalty Upon Summary ConvictionMaximum Penalty Upon Indictment
Stealing, Attempted Stealing or incitement to steal other than in circumstances listed below where the value of the property stolen exceeds $10,000.00   Stealing, Attempted Stealing or incitement to steal other than in circumstances listed below where the value of the property stolen does not exceed $10,000.00   Stealing, Attempted Stealing or incitement to steal other than in circumstances listed below where the value of the property stolen does not exceed $1,000.00      Not applicable             Fine – $24,000.00 and/ or Imprisonment for 2 years         Fine – $6,000.00Imprisonment for 7 years             Imprisonment for 7 years             Imprisonment for 7 years              
s.378(1) – Stealing a testamentary instrumentNot applicableImprisonment for 10 years
s.378(3) – Stealing, Attempted Stealing or Inciting another to steal where the thing stolen is a motor vehicle     s.378(2) – Stealing a motor vehicle where the offender drives in a way that constitutes the offence of driving in a dangerous or reckless manner or at a reckless speed  Fine – $24,000.00 and/ or Imprisonment for 2 years       Not applicableImprisonment for 7 years           Imprisonment for 8 years
s.378(4a) – Stealing of aircraftNot applicableImprisonment for 10 years
s.378(5) – Stealing in any of the following circumstances:   (a) from the person of another where the value of the thing stolen does not exceed $10,000.00; or   If the value of the thing exceeds $10,000.00     (b) Stealing from a dwelling and the thing stolen is valued at more than $10,000.00 or if the offender used or threatened violence to any person in the dwelling before, during or after the Stealing; or   (c) Stealing from any kind of vessel, vehicle or place of deposit used for the conveyance or custody of goods in transit; or   (d) Stealing from a vessel which is wrecked, stranded or in distress; or   (e) Stealing a thing from within a public office; or   (f) Stealing which involved opening a locked room, box or other receptacle with a key or any other instrument      Fine – $24,000.00 and/ or Imprisonment for 2 years     Not applicable       Not applicable               Not applicable           Not applicable       Not applicable     Not applicable              Imprisonment for 14 years         Imprisonment for 14 years       Imprisonment for 14 years               Imprisonment for 14 years           Imprisonment for 14 years       Imprisonment for 14 years     Imprisonment for 14 years
s.378(6) – Stealing by a public servant of a thing belonging to Her Majesty or where the thing came into the person’s possession by virtue of being a public servant where the value of the thing stolen does not exceed $10,000.00; or   if the value of the thing stolen exceeds $10,000.00Fine – $24,000.00 and/ or Imprisonment for 2 years             Not applicable  Imprisonment for 10 years                 Imprisonment for 10 years
s.378(7) – Stealing by a clerk or servant who steals a thing belonging to their employer or who comes into possession of the thing by virtue of their employment where the value of the thing stolen does not exceed $10,000.00; or   if the value of the thing stolen exceeds $10,000.00Fine – $24,000.00 and/ or Imprisonment for 2 years             Not applicableImprisonment for 10 years                 Imprisonment for 10 years
s.378(8) – where the person is a company director or officer of a company or corporation and the thing is property of the company or corporationNot applicableImprisonment for 10 years
s.378(9) – where the thing: (a) is received by the person in accordance with a power of attorney; or (b) the thing is money which was received with a direction it should be applied to any specified purpose or paid to any person specified; or (c) relates to a valuable security paid to the person; or (d) is part or all of proceeds received under a power of attorney with specific directions as to how the proceeds should be applied or paidNot applicableImprisonment for 10 years
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