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Theft and Receiving

Theft (and receiving)

A person is guilty of theft if the person deals with property dishonestly and without the owner's consent. The person must also intend either to deprive the owner permanently of the property, or to make a serious encroachment on the owner's proprietary rights [s 134(1) Criminal Law Consolidation Act 1935 (SA)].

Receiving stolen property (receiving) from another is punishable as a form of theft [s 134(5)]. If a person is charged with receiving, the court may, if satisfied beyond reasonable doubt that the defendant is guilty of theft but not that the theft was committed by receiving stolen property from another, find the defendant guilty of theft [s 134(6)].

A person may commit theft of property that has come lawfully into his or her possession. An example is theft of property by an employee [s 134(3)(a)].

A person may commit theft of property by the misuse of powers that are vested in the person as agent or trustee or in some other capacity that allows the person to deal with the property [s 134(3)(b)].

Maximum penalty:

Basic offence: imprisonment for 10 years

Agravated offence: imprisonment for 15 years.

[Criminal Law Consolidation Act 1935 (SA) s 134]

Definitions in relation to theft offences

Dishonesty

A person's conduct is dishonest if the person acts dishonestly according to the standards of ordinary people and knows that he or she is acting dishonestly.

The conduct of a person who acts in a particular way is not dishonest if the person honestly but mistakenly believes that he or she has a legal or equitable right to act in that way. The question whether a defendant's conduct was dishonest according to the standards of ordinary people is a question of fact to be decided according to the jury's own knowledge and experience (or the judge's, if there is no jury).

A defendant who is willing to pay for property involved in an alleged offence can still be found to be dishonest.

A person does not act dishonestly if they find property and deal with it in the belief that the identity or whereabouts of the owner cannot be discovered by taking reasonable steps, as long as they are not under a legal or equitable obligation with which the retention of the property is inconsistent.

A person who asserts a legal or equitable right to property that he or she honestly believes to exist does not, by so doing, deal dishonestly with the property.

[Criminal Law Consolidation Act 1935 (SA) s 131]

Serious encroachment

There are two ways of seriously encroaching on someone's proprietary rights.

The first is where a person intends to treat the property as their own to dispose of regardless of the owner's rights.

The second form of serious encroachment is where a person intends to deal with the property in a way that creates a substantial risk (of which the person is aware) that the owner will not get it back, or that, when the owner gets it back, its value will be substantially impaired.

[Criminal Law Consolidation Act 1935 (SA) s 134(2)]

General deficiency

A person may be charged with, and convicted of, theft by reference to a general deficiency in money or other property. In such a case, it is not necessary to establish any particular act or acts of theft [Criminal Law Consolidation Act 1935 (SA) s 136].

It is generally applicable to certain offences, such as embezzlement, and as a result the prosecution do not have to prove a specific amount of money was stolen by the accused. Instead they can rely on a deficiency as proved by the accounts or records made by the accused.

Unlawful possession of personal property

It is an offence for a person to have goods in his or her possession which police reasonably suspect have been unlawfully obtained.

It is a defence to prove, on the balance of probabilities, that the person took possession of the property honestly.

Unlawful possession is generally charged when a person has suspected stolen goods in their possession but the prosecution are unable to establish that they are responsible for the theft itself.

Maximum penalty: 2 years imprisonment or $10 000

[Summary Offences Act 1953 (SA) s 41]

Theft and Receiving  :  Last Revised: Fri Aug 15th 2014
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