Last updated 29 August 2016
Section 391(1) of the Criminal Code Act 1899 (Qld) (Criminal Code) provides that a person who fraudulently takes anything capable of being stolen or fraudulently converts anything capable of being stolen to their own use (or to the use of any other person) is said to steal that property.
Fraudulence is the mental element of the offence of stealing and requires a degree of intention in the act of stealing. Under s 391(2) of the Criminal Code, fraudulence is present if there is intent to:
- deprive the other person of the stolen item permanently. This is the usual case for stealing. The intention here is not satisfied if there is evidence that the defendant only had an intention to deprive the person of the item temporarily (see R v Bailey  QWN 38)
- use it as a pledge or security
- take it on a condition about its return that the person may be unable to perform
- deal with it in a way that it cannot be returned in the same condition
- use it at the defendant’s will if the property is money, even if the defendant intends to repay the other person afterwards.
Apart from satisfying one of these modes of intent, there is no additional requirement for the prosecution to prove or intend to prove that the accused acted dishonestly.
Taking or converting
The element of taking is satisfied if a defendant physically takes something and carries it away from the true owner. The slightest degree of movement can be sufficient (see Wallis v Lane  VR 293). Section 391(6) of the Criminal Code provides that the act of stealing is not complete until the property actually moves or is otherwise actually dealt with by some physical act. In addition, taking may be a continuous act (e.g. stealing is established if someone takes an item with no intent of stealing it but then decides to keep it (see R v Johnston  Qd R 303)).
Converting involves dealing with goods in a manner inconsistent with the right of the true owner. There must also be an intention on the part of the defendant to deny the owner’s right or to assert a right that is inconsistent with the owner’s right. Examples of converting include keeping something, selling it or changing its appearance.
Anything capable of being stolen
Section 390 of the Criminal Code notes that property capable of being stolen must be moveable or capable of being made moveable, even if it is made moveable in order to steal it.
The definition for property capable of being stolen is very broad. Under s 1 of the Criminal Code, property includes:
- everything animate or inanimate that is capable of being the subject of ownership
- electrical or other energy, gas and water
- a plant
- an animal that is:
- a tame animal, whether or not naturally tame
- an untamed animal of a type that, if kept, is usually to be confined
- an untamed animal in a person’s possession or being pursued for return to possession after escape
- a thing produced by an animal mentioned above
- any other property, real or personal, legal or equitable including things in action and other intangible property (e.g. copyrights or patents).
Demonstrating ownership is important for stealing prosecutions. Ownership has an extended meaning under s 391(7) of the Criminal Code such that possession or control of property is sufficient. Section 390 provides that the property must be owned by a person. However, if the property is owned by one or more persons, s 566(15) of the Criminal Code provides that ownership is established where evidence of such ownership is provided by one of the owners. Where ownership is unknown, a prosecution can still occur, but the Crown must prove that ownership is unknown. Ordinarily, ownership will be known, and the Crown merely needs to prove that ownership.
Section 391(5) of the Criminal Code contains a provision for the situation where someone finds an item. In that situation, conversion will not be fraudulent if, at the time of converting it, the defendant did not know who the owner of the lost item was, and they reasonably believed the owner could not be found. However, if there were some identifying details of the owner on the property, a failure to contact the owner would constitute stealing. However, if its owner has abandoned the property, it cannot be stolen.
Penalty for stealing
The head sentence for stealing is generally five years imprisonment (s 398 Criminal Code). However, this head sentence can be increased to ten years imprisonment where the following features exist:
- the property is stolen from the person by another
- the property is stolen from a dwelling and exceeds $1000 in value, or was taken with a threat of violence
- the property is stolen from a vehicle
- there is a relationship between the stealing and the defendant’s position (e.g. public servant, clerk, servant, company director, agent or tenant)
- the value of the thing exceeds $5000 or after previous conviction
- the property stolen is a firearm.
Where the property stolen is a firearm and is being stolen for the purpose of committing an indictable offence, or the property stolen is a vehicle, the head sentence can be increased to 14 years imprisonment. Finally, where the property stolen is a testamentary instrument (a will), the head sentence can be increased to life imprisonment.
These offences are indictable offences, which must be dealt with summarily in the Magistrates Court. A defendant no longer has a right to elect to have these matters determined in the District Court of Queensland. However, in certain circumstances, where the value of the property stolen is in excess of $30 000, there is provision for the charge to be dealt with on indictment in the District Court (s 552BA Criminal Code).
Whether the defendant is pleading guilty or not is sometimes a determining factor. Where the value of the property stolen or the detriment incurred exceeds the prescribed value of $30 000, scope may still exist to have the matter determined summarily on a plea of guilty where the magistrate believes that they may adequately deal with the matter. Should an accused person contest the charges and the value of the property stolen or the detriment incurred exceeds the prescribed value, then the matter will be committed to the District Court.
Offences alleging aggravating features carrying a period of imprisonment of 14 years must also be dealt with in the District Court.
There is also discretion for a magistrate to order that a charge be referred to the higher court, if the magistrate is of the view that the defendant will not be appropriately punished in the Magistrates Court (s 552D Criminal Code). Magistrates can only impose terms of imprisonment up to three years.
Regulatory offences for stealing
Under the Regulatory Offences Act 1985 (Qld) (Regulatory Offences Act), there are two main stealing offences. The first is unauthorised dealing with shop goods. Section 5 of the Regulatory Offences Act provides that it is a regulatory offence for any person, with respect to shop goods valued at $150 or less, to:
- consume them without the consent, express or implied, of the person in lawful possession of the goods
- deliberately alter, remove, deface or otherwise render indistinguishable a price shown on the goods, without the consent, express or implied, of the person in lawful possession of them
- take the items away without discharging, or attempting honestly or making proper arrangements to discharge their debt for the goods, whether or not the property in the goods has passed to the person.
The penalty is usually a fine, and the court can also order payment of costs of the investigation, costs of court and compensation (s 9 Regulatory Offences Act). It is a defence to a charge of an offence of non-payment to prove the taking away of the goods was not dishonest.
The second offence is leaving a hotel without payment. Section 6 of the Regulatory Offences Act makes it an offence for any person who, with respect to food, drink, accommodation or like goods and services, valued at $150 or less, obtained from any restaurant or hotel, motel, boarding house or like premises:
- leaves such premises without discharging, or attempting honestly or making proper arrangements to discharge their debt
- purports to pay with a cheque that is not met on presentation, or a credit card or similar document the person is not authorised to use.
The penalty is a fine of $300 (subject to costs or compensation being ordered under s 9 of the Regulatory Offences Act). It is a defence to a charge of an offence of giving an invalid cheque or unauthorised credit card to prove the defendant believed on reasonable grounds the cheque would be paid in full on presentation, or the defendant was authorised to use the credit card or similar document.
Offences under ss 5 and 6 of the Regulatory Offences Act are both determined summarily. The defences to the charges are specifically provided for in the sections, and a defendant must prove a defence on the balance of probabilities.