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  • Stealing Offences in Queensland (QLD)

    A commonly misinterpreted or less understood law is the offence of stealing. Under the law, stealing goes beyond taking the belongings or properties of others without their consent or desire. And this lack of knowledge is why the Court has to deal with lots of stealing offences each day.

    The Criminal Code Act 1899 (Queensland) details all the punishable behaviours constituting stealing offences. And under section 391, defines a stealing offence to have occurred when;

    1. A person who fraudulently takes anything capable of being stolen, or fraudulently converts the person's use or to the use of any other person, anything capable of being stolen, is said to steal that thing.
    2. A person who takes, or converts anything capable of being stolen is deemed to do so fraudulently if the person does so with any of the following intents, that is to say-

    (a) An intent to permanently deprive the owner of the thing of it;

    (b) An intent to permanently deprive any person who has any special property in the thing of such property;

    (c) An intent to use the thing as a pledge or security;

    (d) An intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;

    (e) An intent to deal with it in such manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;

    In the case of money—an intent to use it at the will of the accused, although the person may intend to afterwards repay the amount to the owner.

    Stealing offences will show up on a national criminal history check in QLD. The offence is displayed in accordance with the rules of the QLD’s spent convictions scheme.

    Stealing of properties that cannot be identified

    It is a stealing offence if a person takes away a possession/part of anything capable of being stolen even when it is not noticed that the thing is taken.

    It also covers actions where the person fraudulently converted the property where;

    • The person has not discharged their obligations to own it
    • The person has not completed their obligations with the owner or previous owner
    • The person has not settled the payment or terms of payments for the thing

    Fraudulent taking

    Part 3, 4 and 5 of Section 391 of the Act also prohibits the illegal conversion of a property. It does not matter whether the conversion is done secretly or in an attempt to conceal the act. It also does not matter whether;

    • The property stolen (converted) is taken for conversion, or
    • It was in the possession of the person who converted it at the time of conversion.
    • The person who converts it had the power of attorney for the disposition of it, or,
    • Authorized to dispose of the property

    Stealing of Lost and Found Items

    The Act does not consider it stealing if the converted item was lost by the owner and found by the person who converts it was at the time of converting;

    • The person taking/converting the item does not know who the owner, or
    • Sufficiently believes (reasonably) that it is almost impossible to discover the owner

    Stealing must be complete before it becomes an offence

    Part 6 of Section 391 of the Act states that stealing is not complete until the person converting the item;

    • Moves it through any means, or
    • Tampers with the item through other physical acts

    Stealing offence of failing to pay an employee

    The Act considers it stealing if an employer refuses to pay an employee or others on their behalf, as previously agreed. It follows that the'

    • The amount is a substantial (tangible) amount capable of being stolen,
    • Part 6 does not apply,
    • the amount is converted to the person's use when
      • (i) The amount becomes; under an Act,
      • (ii) Industrial instrument or agreement,
      • (iii) Payable to the employee or the other person on behalf of the employee,
      • (iv) And the amount is not paid.

    Industrial Acts

    This section includes an Act of another State or the Commonwealth.

    Industrial instrument means;

    • (a) An industrial instrument under the Industrial Relations Act 2016, schedule 5; or,
    • (b) A fair work instrument under the Fair Work Act 2009 (Cth) owner, includes the owner, any part owner, or any person having possession or control of, or a special property in, the thing in question.

    Special property, in a thing, includes;

    (a) A charge or lien on the thing; and,

    (b) A right arising from, or dependent on holding possession of the thing, whether by the person entitled to the right or by another person for the other person's benefit; and,

    (c) A right of an employee, concerning the performance of work by the employee—

    • (i) To be paid the thing; or
    • (ii) To have the thing paid to another person on behalf of the employee.

    What are the things capable of being Stolen?

    The Act defines a property or work of a person is capable of being stolen if;

    • It is moveable or was moved,
    • Capable of being made moveable, even though it was just to steal it.

    Special Cases for stealing

    If a wild animal on its free instincts wanders into an area and is killed by a person (hunted); the person is not stealing if;

    They or anyone acting under them claims (takes) the animal before the real owner of the property where the animal has died claims it.

    Cases of Lien and security interest

    A party or agent is not deemed to have stolen if they deal with the goods or documents of title or other collateral entrusted in their care for sale.

    Stealing offences of Funds held under the direction

    If a person receives, either jointly or alone;

    • Money,
    • Valuable security,
    • Power of attorney,
    • Irrespective of whether they can be stolen or not

    For the sale, mortgage or other disposition of the property, and a directive that the proceeds shall apply to the purpose, or be paid to a person.

    Such money and proceeds are deemed to be the property of the person who receives them until the direction has been complied with.

    However, if both parties have mutual agreements on credit and debits of their accounts, the person receiving the money cannot be charged with stealing.

    Stealing involving receiving funds for a sale

    Where there is an agreement between two parties/agents to sell or dispose of property for remittance to the owner;

    • The proceeds or other exchanges are the properties of the owner,
    • The person authorized to sell must remit the properties to the owner, except there is a further or contrary agreement,
    • The relation of creditor and debtor shall exist between them thereof,
    • The person authorized to sell has stolen if they do not remit the proceeds.

    Stealing where Money is received on behalf of another

    If an agent or party receives money or property on behalf of another agent;

    • A debtor-creditor relationship starts to exist between them,
    • The money received is deemed the property for the person it was collected on their behalf,
    • The party has stolen from another if they refuse to remit the money or item to the person on behalf of whom they collected it.

    Stealing where there is an interest in the thing stolen

    Stealing offences does not care or consider that the person stealing is;

    • The owner of the property of a person (subject to special interests),
    • The person has a special property or interest therein,
    • The person is the lessee,
    • The person is a joint owner of the property,
    • The person is a director or owner of the corporation or organization they stole from.

    The law considers all cases of stealing equally and deals with them following the Acts regulations.

    What is a fraudulent act?

    Stealing offences usually mention fraudulent activities since they are an ever-present factor. Section 391 (2) of the Act defines fraudulence as;

    Depriving the other person of the stolen item permanently. This is the usual case for stealing. A fraudulent action occurs under the law if the accused with the property;

    • 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.
    • Use it as a pledge or security

    What is 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. It is referenced in Wallis v Lane [1964] VR 293.

    Converting involves dealing with goods in a manner suspicious of the right of the true owner. It includes;

    • The intention of the defendant to deny the owner’s right, or
    • To assert a right that is parallel with the owner’s right.

    Examples of converting, include keeping something, selling it or changing its appearance.

    Punishments for stealing offences

    The penalties for stealing are specified under the Criminal Code Act (Queensland). And all offenders found guilty of the crime are liable to sentencing and such offences will show up on a police check result. However, the law stipulates an imprisonment period of 5 years;

    • If no other punishments are stated
    • No aggravating circumstances for the offence
    1. Penalties for special stealing offences

    The Criminal Code Act stipulates specific penalties for these offences;

    Stealing of wills or testamentary instrument, whether the testator is living or dead; the offender is liable to 14 years imprisonment

    1. Stealing Stock

    If the offender is sentenced to pay a fine for stealing 1 or more animals, the fines must be at least; 10 penalty units, including any term of imprisonment the court imposes.

    1. Stealing from a Person

    If a person steals from a person involving any of the property is stolen from/in a;

    • Dwelling exceeds $1,000 in value and involves threats and violence
    • Vehicle of conveyance or custody of goods
    • A distressed or wrecked vehicle
    • A public office
    • Locked room.

    The offender is liable to a 10 years imprisonment term for the following stealing offences:

    1. Stealing by clerks and servants from their employers attract punishments of 10 years
    2. Stealing by directors of companies from the corporation or organization they work for attracts penalties of 10 years imprisonment
    3. Stealing by agents attracts 10 years imprisonment irrespective of the number of proceeds they stole
    4. Stealing property valued above $5000 attracts 10 years imprisonment
    5. Stealing by tenants and lodgers, especially where its value exceeds $1000 incurs 10 years of imprisonment
    6. Stealing after a previous conviction; If the offender had a prior conviction or indictment or was twice previously convicted of summary offences, the offender is liable to 10 years imprisonment
    7. Stealing of vehicles

    Where a vehicle was stolen, the law stipulates punishments of 14 years imprisonment.

    1. Stealing by looting;

    The law prescribes penalties of 10 years, especially if they were committed during;

    • Civil unrests, natural disasters, industrial disputes,
    • Stolen from a dead or vulnerable person/unattended person,
    • Committed to an area declared a disaster situation.
    1. Stealing a firearm for use in another indictable offence incurs punishments of 14 years imprisonment
    2. Stealing firearm or ammunition incurs a punishment of 10 years imprisonment
    3. Stealing by employers from their employees attract punishments of 10 years imprisonment

    Fraudulent concealment of documents

    The offence of defrauding, concealing, or tricking a person on terms of testaments or legal documents attracts penalties of;

    • 3 years imprisonment for offences relating to the title of documents
    • 14 years for otherwise offences

    Severing with intent to steal

    Anyone who makes a thing moveable or isolated with the intent to steal is liable to punishments for the real offence.

    Bringing in stolen goods

    A person with full knowledge and active participation in bringing stolen goods into Queensland will get the same punishments as if the offence was committed in Queensland.

    What court deals with Stealing offences?

    Stealing offences are indictable offences that are dealt with summarily in the QLD Magistrate court. The defendant does not have a right to elect the matter to be heard in the District Court of Queensland.

    However, by special provisions (s 552BA), if the value of the property stolen is above $30,000, there is provision for the charge to be dealt with on indictment in a District court.

    Do stealing offences appear on a national criminal record check in the state of Queensland (QLD)?

    Offences for stealing is a criminal offence and if convicted in a court, will show up on a criminal record check result.

    Where applicable, the offence is disclosed in accordance with the spent convictions scheme of QLD (if the offence qualifies to be spent).

    You can obtain your national criminal history check online via the Australian National Character Check (ANCC®) website.

    Sources

    Sections 391 – 406 of the Criminal Code Act 1899 (QLD) - https://www.legislation.qld.gov.au/view/pdf/inforce/current/act-1899-009

    Section 522BA of the Criminal Code Act 1899 - http://www5.austlii.edu.au/au/legis/qld/consol_act/cc189994/s552ba.html

    Fair Work Act 2009 (Cth) - https://www.legislation.gov.au/Details/C2017C00323

    Wallis v Lane [1964] VR 293 - https://victorianreports.com.au/judgment/view/1964-VR-293

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