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Stealing Offences


Stephen Preece

Stealing is the act of taking another’s property. The law defines the act of stealing and what can be stolen. This section of the website sets out what the West Australian law has to say on matters of and relating to stealing.

Pursuant to Section 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 Section 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.

FRAUDULENT TAKING OR CONVERTING TO USE

What is Fraudulent taking or Converting to Use?

Pursuant to Section 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 Section 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 Section 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 Section 370 of the Code, includes any living creature (other than humans) and any living aquatic organism.

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 Section 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.



where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers will be able to guide you through the process while dealing with the various authorities related to your matter.

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