Criminal Code Act 1995 (Australia, unsourced)/Chapter 7/7.2

by Commonwealth of Australia

Part 7.2—Theft and other property offences

Division 131—Theft

131.1 Theft

(1) A person is guilty of an offence if:

(a) the person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property; and

(b) the property belongs to a Commonwealth entity.

Penalty: Imprisonment for 10 years.

(2) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of theft.

(3) Absolute liability applies to the paragraph (1)(b) element of the offence of theft.

(4) Section 15.4 (extended geographical jurisdiction—category D) applies to an offence against subsection (1).

Note: For alternative verdicts, see sections 132.1 and 134.1.

131.2 Special rules about the meaning of dishonesty

(1) For the purposes of this Division, a person’s appropriation of property belonging to another is taken not to be dishonest if the person appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

(2) However, the rule in subsection (1) does not apply if the person appropriating the property held it as trustee or personal representative.

(3) For the purposes of this Division, a person’s appropriation of property belonging to another may be dishonest even if the person or another person is willing to pay for the property.

131.3 Appropriation of property

(1) For the purposes of this Division, any assumption of the rights of an owner to ownership, possession or control of property, without the consent of the person to whom it belongs, amounts to an appropriation of the property. This includes, in a case where a person has come by property (innocently or not) without committing theft, any later such assumption of rights without consent by keeping or dealing with it as owner.

(2) For the purposes of this Division, if property, or a right or interest in property, is, or purports to be, transferred or given to a person acting in good faith, a later assumption by the person of rights which the person had believed himself or herself to be acquiring does not, because of any defect in the transferor’s title, amount to an appropriation of the property.

131.4 Theft of land or things forming part of land

(1) For the purposes of this Division, a person cannot commit theft of land, except in the following cases:

(a) the case where the person appropriates anything forming part of the land by severing it or causing it to be severed;

(b) the case where:

(i) the person is a trustee or personal representative, or is authorised (by power of attorney, as liquidator of a company or otherwise) to sell or dispose of land belonging to another; and

(ii) the person appropriates the land, or anything forming part of it, by dealing with it in breach of the confidence reposed in the person.

(2) For the purposes of this section, land does not include incorporeal hereditaments.

131.5 Trust property

(1) For the purposes of this Division, if property is subject to a trust, the persons to whom the property belongs include any person who has a right to enforce the trust.

(2) Accordingly, for the purposes of this Division, an intention to defeat the trust is an intention to deprive any such person of the property.

131.6 Obligation to deal with property in a particular way

For the purposes of this Division, if:

(a) a person receives property from or on account of another; and

(b) the person is under a legal obligation to the other to retain and deal with that property or its proceeds in a particular way;

the property or proceeds belong (as against the person) to the other.

131.7 Property obtained because of fundamental mistake

(1) For the purposes of this Division, if:

(a) a person gets property by another’s fundamental mistake; and

(b) the person is under a legal obligation to make restoration (in whole or in part) of the property, its proceeds or value;

then, to the extent of that obligation, the property or proceeds belongs (as against the person) to the person entitled to restoration.

(2) For the purposes of this Division, an intention not to make restoration is:

(a) an intention to permanently deprive the person so entitled of the property or proceeds; and

(b) an appropriation of the property or proceeds without the consent of the person entitled to restoration.

(3) For the purposes of this section, a fundamental mistake is:

(a) a mistake about the identity of the person getting the property; or

(b) a mistake as to the essential nature of the property; or

(c) a mistake about the amount of any money if the person getting the money is aware of the mistake at the time of getting the money.

(4) In this section:

money includes anything that is equivalent to money. For this purpose, cheques, negotiable instruments and electronic funds transfers are taken to be equivalent to money.

131.8 Property of a corporation sole

For the purposes of this Division, property of a corporation sole belongs to the corporation despite a vacancy in the corporation.

131.9 Property belonging to 2 or more persons

If property belongs to 2 or more persons, a reference in this Division (other than paragraph 131.1(1)(b)) to the person to whom the property belongs is a reference to all of those persons.

131.10 Intention of permanently depriving a person of property

(1) For the purposes of this Division, if:

(a) a person appropriates property belonging to another without meaning the other permanently to lose the thing itself; and

(b) the person’s intention is to treat the thing as the person’s own to dispose of regardless of the other’s rights;

the person has the intention of permanently depriving the other of it.

(2) For the purposes of this section, a borrowing or lending of a thing amounts to treating the thing as the borrower’s or lender’s own to dispose of regardless of another’s rights if, and only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

(3) For the purposes of this section, if:

(a) a person has possession or control (lawfully or not) of property belonging to another; and

(b) the person parts with the property under a condition as to its return that the person may not be able to perform; and

(c) the parting is done for purposes of the person’s own and without the other’s authority;

the parting is taken to amount to treating the property as the person’s own to dispose of regardless of the other’s rights.

Note: See also paragraph 131.7(2)(a).

131.11 General deficiency

(1) For the purposes of this Division, a person may be convicted of theft of all or any part of a general deficiency in money even though the deficiency is made up of any number of particular sums of money that were appropriated over a period of time.

(2) For the purposes of this Division, a person may be convicted of theft of all or any part of a general deficiency in property other than money even though the deficiency is made up of any number of particular items of property that were appropriated over a period of time.

Division 132—Other property offences

132.1 Receiving

(1) A person is guilty of an offence if the person dishonestly receives stolen property, knowing or believing the property to be stolen.

Penalty: Imprisonment for 10 years.

(2) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of receiving.

(2A) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew or believed that the property belonged to a Commonwealth entity.

Stolen property

(3) For the purposes of this section, property is stolen property if, and only if:

(a) it is original stolen property (as defined by subsection (5)); or

(aa) it is previously received property (as defined by subsection (5A)); or

(b) it is tainted property (as defined by subsection (7)).

This subsection has effect subject to subsections (4) and (6).

(4) For the purposes of this section, stolen property does not include land obtained in the course of an offence against section 134.1.

Original stolen property

(5) For the purposes of this section, original stolen property is:

(a) property, or a part of property, that:

(i) was appropriated in the course of theft (whether or not the property, or the part of the property, is in the state it was in when it was so appropriated); and

(ii) is in the possession or custody of the person who so appropriated the property; or

(b) property, or a part of property, that:

(i) was obtained in the course of an offence against section 134.1 (whether or not the property, or the part of the property, is in the state it was in when it was so obtained); and

(ii) is in the possession or custody of the person who so obtained the property or the person for whom the property was so obtained.

Previously received property

(5A) For the purposes of this section, previously received property is property that:

(a) was received in the course of an offence against subsection (1); and

(b) is in the possession or custody of the person who received the property in the course of that offence.

(6) For the purposes of this section, property ceases to be original stolen property or previously received property:

(a) after the property is restored:

(i) to the person from whom it was appropriated or obtained; or

(ii) to other lawful possession or custody; or

(b) after:

(i) the person from whom the property was appropriated or obtained ceases to have any right to restitution in respect of the property; or

(ii) a person claiming through the person from whom the property was appropriated or obtained ceases to have any right to restitution in respect of the property.

Tainted property

(7) For the purposes of this section, tainted property is property that:

(a) is (in whole or in part) the proceeds of sale of, or property exchanged for:

(i) original stolen property; or

(ii) previously received property; and

(b) if subparagraph (a)(i) applies—is in the possession or custody of:

(i) if the original stolen property was appropriated in the course of theft—the person who so appropriated the original stolen property; or

(ii) if the original stolen property was obtained in the course of an offence against section 134.1—the person who so obtained the property or the person for whom the property was so obtained; and

(c) if subparagraph (a)(ii) applies—is in the possession or custody of the person who received the previously received property in the course of an offence against subsection (1).

Money transfers

(8) For the purposes of this section, if, as a result of the application of subsection 134.1(9) or (10), an amount credited to an account held by a person is property obtained in the course of an offence against section 134.1:

(a) while the whole or any part of the amount remains credited to the account, the property is taken to be in the possession of the person; and

(b) if the person fails to take such steps as are reasonable in the circumstances to secure that the credit is cancelled—the person is taken to have received the property; and

(c) subsection (6) of this section does not apply to the property.

Note: Subsections 134.1(9) and (10) deal with money transfers.

Alternative verdicts

(9) If, in a prosecution for an offence of theft or an offence against section 134.1, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence of receiving, the trier of fact may find the defendant not guilty of the offence of theft or the section 134.1 offence but guilty of the offence of receiving, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

(10) If, in a prosecution for an offence of receiving, the trier of fact is not satisfied that the defendant is guilty of the offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence of theft or an offence against section 134.1, the trier of fact may find the defendant not guilty of the offence of receiving but guilty of the offence of theft or the section 134.1 offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Receiving property stolen before commencement

(11) For the purposes of this section:

(a) it is to be assumed that sections 131.1 and 134.1 had been in force at all times before the commencement of this section; and

(b) property that was appropriated or obtained at a time before the commencement of this section does not become original stolen property unless the property was appropriated or obtained in circumstances that (apart from paragraph (a)) amounted to an offence against a law of the Commonwealth in force at that time.

Obtaining

(12) The definition of obtaining in section 130.1 does not apply to this section.

Note: See subsection 134.1(3).

Definition

(13) In this section:

account has the same meaning as in section 133.1.

132.2 Robbery

(1) A person is guilty of an offence if the person commits theft and:

(a) immediately before committing theft, the person:

(i) uses force on another person; or

(ii) threatens to use force then and there on another person;

with intent to commit theft or to escape from the scene; or

(b) at the time of committing theft, or immediately after committing theft, the person:

(i) uses force on another person; or

(ii) threatens to use force then and there on another person;

with intent to commit theft or to escape from the scene.

Penalty: Imprisonment for 15 years.

(2) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of robbery.

Note: Theft means an offence against section 131.1. Under section 131.1, an element of the offence of theft is that the property belongs to a Commonwealth entity.

(3) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the property belonged to a Commonwealth entity.

132.3 Aggravated robbery

(1) A person is guilty of an offence if the person:

(a) commits a robbery in company with one or more other persons; or

(b) commits a robbery and, at the time of the robbery, has an offensive weapon with him or her.

Penalty: Imprisonment for 20 years.

(2) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of aggravated robbery.

Note: Robbery means an offence against section 132.2. Under section 132.2, an element of the offence of robbery is that the defendant commits theft. Theft means an offence against section 131.1. Under section 131.1, an element of the offence of theft is that the property belongs to a Commonwealth entity.

(2A) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the property belonged to a Commonwealth entity.

(3) In this section:

offensive weapon includes:

(a) an article made or adapted for use for causing injury to, or incapacitating, a person; or

(b) an article where the person who has the article intends, or threatens to use, the article to cause injury to, or to incapacitate, another person.

132.4 Burglary

(1) A person is guilty of an offence if:

(a) the person enters, or remains in, a building, as a trespasser, with intent to commit theft of a particular item of property in the building; and

(b) the property belongs to a Commonwealth entity.

Penalty: Imprisonment for 13 years.

(2) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of burglary.

(2A) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the property belonged to a Commonwealth entity.

(3) A person is guilty of an offence if:

(a) the person enters, or remains in, a building, as a trespasser, with intent to commit an offence in the building that involves causing harm to another person or damage to property; and

(aa) the offence referred to in paragraph (a) is an offence against a law of the Commonwealth; and

(b) the offence referred to in paragraph (a) is punishable by imprisonment for life or for a term of 5 years or more.

Penalty: Imprisonment for 13 years.

(3A) In a prosecution for an offence against subsection (3), it is not necessary to prove that the defendant knew that the offence referred to in paragraph (3)(a) is an offence against a law of the Commonwealth.

(4) In a prosecution for an offence against subsection (3), it is not necessary to prove that the defendant knew that the offence referred to in paragraph (3)(a) is punishable by imprisonment for life or for a term of 5 years or more.

(5) For the purposes of this Code, an offence against subsection (3) is also to be known as the offence of burglary.

(6) A person is guilty of an offence if:

(a) the person enters, or remains in, a building, as a trespasser, with intent to commit an offence in the building that involves causing harm to another person or damage to property; and

(aa) the offence referred to in paragraph (a) is an offence against a law of the Commonwealth, a State or a Territory; and

(b) the offence referred to in paragraph (a) is punishable by imprisonment for life or for a term of 5 years or more; and

(c) the building is owned or occupied by a Commonwealth entity.

Penalty: Imprisonment for 13 years.

(6A) In a prosecution for an offence against subsection (6), it is not necessary to prove that the defendant knew that the offence referred to in paragraph (6)(a) is an offence against a law of the Commonwealth, a State or a Territory.

(7) In a prosecution for an offence against subsection (6), it is not necessary to prove that the defendant knew that the offence referred to in paragraph (6)(a) is punishable by imprisonment for life or for a term of 5 years or more.

(8) Absolute liability applies to the paragraph (6)(c) element of the offence.

(9) For the purposes of this Code, an offence against subsection (6) is also to be known as the offence of burglary.

(10) For the purposes of this section, a person is taken not to be a trespasser:

(a) merely because the person is permitted to enter, or remain in, a building for a purpose that is not the person’s intended purpose; or

(b) if the person is permitted to enter, or remain in, a building as a result of fraud, misrepresentation or another person’s mistake.

(12) In this section:

building includes:

(a) a part of a building; or

(b) a mobile home or a caravan; or

(c) a structure (whether or not movable), a vehicle, or a vessel, that is used, designed or adapted for residential purposes.

132.5 Aggravated burglary

(1) A person is guilty of an offence if the person:

(a) commits a burglary in company with one or more other persons; or

(b) commits a burglary, and at the time of the burglary, has an offensive weapon with him or her.

Penalty: Imprisonment for 17 years.

(2) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of aggravated burglary.

(3) In a prosecution for an offence against subsection (1) in relation to the offence of burglary created by subsection 132.4(1), it is not necessary to prove that the defendant knew that the property concerned belonged to a Commonwealth entity.

(4) In a prosecution for an offence against subsection (1) in relation to the offence of burglary created by subsection 132.4(3), it is not necessary to prove that:

(a) the defendant knew that the offence referred to in paragraph 132.4(3)(a) is an offence against a law of the Commonwealth; or

(b) the defendant knew that the offence referred to in paragraph 132.4(3)(a) is punishable by imprisonment for life or for a term of 5 years or more.

(5) In a prosecution for an offence against subsection (1) in relation to the offence of burglary created by subsection 132.4(6), it is not necessary to prove that:

(a) the defendant knew that the offence referred to in paragraph 132.4(6)(a) is an offence against a law of the Commonwealth, a State or a Territory; or

(b) the defendant knew that the offence referred to in paragraph 132.4(6)(a) is punishable by imprisonment for life or for a term of 5 years or more; or

(c) the defendant knew that the building was owned or occupied by a Commonwealth entity.

(6) In this section:

offensive weapon includes:

(a) an article made or adapted for use for causing injury to, or incapacitating, a person; or

(b) an article where the person who has the article intends, or threatens to use, the article to cause injury to, or to incapacitate, another person.

132.6 Making off without payment

(1) A person is guilty of an offence if:

(a) the person, knowing that immediate payment for any goods or services supplied by another person is required or expected from him or her, dishonestly makes off:

(i) without having paid; and

(ii) with intent to avoid payment of the amount due; and

(b) the other person is a Commonwealth entity.

Penalty: Imprisonment for 2 years.

(2) Absolute liability applies to the paragraph (1)(b) element of the offence.

(3) For the purposes of this section, immediate payment includes payment at the time of collecting goods in respect of which a service has been provided.

132.7 Going equipped for theft or a property offence

(1) A person is guilty of an offence if the person, when not at home, has with him or her any article with intent to use it in the course of, or in connection with, theft or a property offence.

Penalty: Imprisonment for 3 years.

(2) In a prosecution for an offence against subsection (1) in relation to:

(a) theft; or

(b) robbery; or

(c) aggravated robbery; or

(d) the offence of burglary created by subsection 132.4(1); or

(e) the offence of aggravated burglary that relates to the offence of burglary created by subsection 132.4(1); or

(f) an offence against section 134.1;

it is not necessary to prove that the defendant knew that the property concerned belonged to a Commonwealth entity.

(3) In a prosecution for an offence against subsection (1) in relation to:

(a) the offence of burglary created by subsection 132.4(3); or

(b) the offence of aggravated burglary that relates to the offence of burglary created by subsection 132.4(3);

it is not necessary to prove that:

(c) the defendant knew that the offence referred to in paragraph 132.4(3)(a) is an offence against a law of the Commonwealth; or

(d) the defendant knew that the offence referred to in paragraph 132.4(3)(a) is punishable by imprisonment for life or for a term of 5 years or more.

(4) In a prosecution for an offence against subsection (1) in relation to:

(a) the offence of burglary created by subsection 132.4(6); or

(b) the offence of aggravated burglary that relates to the offence of burglary created by subsection 132.4(6);

it is not necessary to prove that:

(c) the defendant knew that the offence referred to in paragraph 132.4(6)(a) is an offence against a law of the Commonwealth, a State or a Territory; or

(d) the defendant knew that the offence referred to in paragraph 132.4(6)(a) is punishable by imprisonment for life or for a term of 5 years or more; or

(e) the defendant knew that the building was owned or occupied by a Commonwealth entity.

(5) In this section:

property offence means:

(a) robbery; or

(b) aggravated robbery; or

(c) burglary; or

(d) aggravated burglary; or

(e) an offence against subsection 132.8(1); or

(f) an offence against section 134.1.

Note: It is an element of the offence of theft, and of each property offence, that the property belongs to a Commonwealth entity.

132.8 Dishonest taking or retention of property

Taking

(1) A person is guilty of an offence if the person:

(a) on a particular occasion, dishonestly takes one or more items of property belonging to a Commonwealth entity, where:

(i) the value or total value of the property is $500 or more; or

(ii) the absence of the property from the possession, custody or control of the person who would otherwise have had possession, custody or control would be likely to cause substantial disruption to activities carried on by or on behalf of a Commonwealth entity; and

(b) does not have consent to do so from the person who has authority to give consent.

Penalty: Imprisonment for 2 years.

Retention

(2) A person is guilty of an offence if the person:

(a) on a particular occasion, takes one or more items of property belonging to a Commonwealth entity; and

(b) dishonestly retains any or all of those items; and

(c) does not have consent to the retention from the person who has authority to give consent; and

(d) either:

(i) at the time of the taking of the property, the value or total value of the property was $500 or more; or

(ii) the absence of the property from the possession, custody or control of the person who would otherwise have had possession, custody or control is likely to cause substantial disruption to activities carried on by or on behalf of a Commonwealth entity.

Penalty: Imprisonment for 2 years.

132.9 Geographical jurisdiction

Section 15.4 (extended geographical jurisdiction—category D) applies to each offence against this Division.