The term used to describe this offence in Queensland is “stealing” whereas the term “theft” is widely used in other legal systems.

Section 391 of Queensland Criminal Code defines “stealing” broadly enough to include several other offences, which are not called “stealing” in everyday language.   The offence of stealing can only be committed with regard to things “capable of being stolen.”  The things capable of being stolen are the things which are moveable, or which can be made moveable.     Immoveable things such as land and buildings cannot be stolen.

Our Criminal Code specifies two ways in which this offence can be committed;

1. Fraudulently taking anything capable of being stolen, or
2. Fraudulently converting anything capable of being stolen to one’s own use or the use of somebody else.

The bad faith, as expressed by the term “fraudulently” is central to the offence. Therefore, a person who takes a property belonging to somebody else in good faith cannot be said to have stolen.  However, the prosecution does not need to show that the taking or the conversion was done on secrecy to prove the offender’s bad faith.

The person is deemed to take or convert anything fraudulently in the following situations;

• Where the intention of the person is to permanently deprive the owner of the thing of it;
• Where  the intention of the person is  to permanently deprive any person who has any special right or interest in the thing, such as a lien or its possession;
• Where the intention of the person is to use it as a pledge or security;
• Where the person indented to part with it on a condition as to its return which the person taking or converting it may be unable to perform;
• Where the intention of the person is to deal with it in such a manner that it can not be returned in the condition in which it was at the time of the taking or conversion; and
• If the thing concerned is money, where the person indents to use the money at his will although he hopes to repay the amount to the owner later.

The prosecution has to prove that;

• The thing alleged to have been stolen is capable of being stolen,
• There was a taking or conversion of that thing, and
• The offender did not have  the owner’s consent.

Stealing matters are dealt with in both the Magistrates Court and the District Court. The Magistrate Court hears the case if the value of the thing stolen is less than $5,000.00. However, the defence can elect the District Court to deal with the matter.  All the other cases, where the value of the stolen good exceeds $5,000.00 are dealt with in the District court.

The maximum sentence is 5 years imprisonment.

Stealing as an employee

Stealing as an employee or “employee theft” is a serious offence in Queensland.  The Courts in Queensland treat this offence very seriously.  A person convicted of this offence will usually receive not only prison sentence but also criminal conviction which would affect his/her future career.  When it comes to employee thefts, the offence is more serious than other stealing charges because the offender not only commits a stealing offence but also breaches the trust reposed on him/her by their employer.

The situations of employee theft can fall into four broad categories;

• Direct theft of inventory, products, or cash

Employees are frequently found to have taken cash from the registers or other valuable goods. If you fail to come to a settlement with the employer to restore the cash or the goods taken on the spot, there is a possibility that you end up in the court.

• Manipulation of company records

There are cases where the employees are charged for manipulating the company’s records.  The employees, who have access to company’s records,  may forge the cheques and bills for personal benefit, create ghost payroll entries, and destroy documents so that the lost shipment cannot be traced.  Simple though they may seem, all these situations amount to employee theft.

• Abuse of power in order to aid and abet thievery by partners

This situation, which is known as “sweethearting,” results from collusion between the employees and the customers. The employees grant huge discounts or even free offers to their friends who will later share the profit with them.    This also amounts to an employee theft.

• Theft of information for sale to others or for direct use

Some protected personal data such as credit card info can easily be converted to money, a good business for some employees.

In addition to the general provisions on stealing, Queensland criminal code specially refers to four situations which can be considered as employee thefts.

1. Stealing by the persons in the public service (Section 5) - where the persons employed in the government bodies are found to commit the stealing.
2. Stealing by clerks and servants (Section6) – where alleged person is the employee of the person from whom he has stolen the thing.
3. Stealing by directors and officers of companies (Section 7)
4. Stealing by agents (Section 8)

The maximum punishment in each situation is 10 years imprisonment.

It would be better if the person charged with employee theft can come to a settlement with the employer without starting litigation, but this would be impossible in many cases where the employer is not willing to forgive the employee or where the employee already has a bad record.

Once the case is filed, the employee can represent himself/herself in court but this is very risky unless you are well aware of all the legal facts and issues involved in your case.      Considering the severity of the sentence and the impact a conviction may have on the future career, the best thing you can do is to retain a lawyer with experience in employee theft matters.

A person should also make no admissions or comments to Police without first obtaining legal advice, this is critical for the future conduct of a case.

Robbery

Stealing, which is defined as fraudulent taking or a conversion of a movable property to a person’s use, when committed with violence, becomes a robbery.  The prosecution has to establish in court that the alleged person stole a thing,  with actual use of violence or threatening to use violence, on one of the following three occasions;

1. Before  the stealing
2. After the  stealing
3. Right at the moment when the stealing is being committed.

Violence can be used to any person or property, therefore the person to whom violence is directed at need not to be the owner of the property which is being stolen. For instance, the offender may shoot at a passer-by or destroy some property belonging to a neighbour in order to make an easy escape.    But it has to be proven in court that violence was real and that violence was used in order to obtain the thing stolen or to prevent or overcome the resistance.   It is irrelevant whether the thing stolen is valuable or not.

Depending on the seriousness of the offence, the maximum penalty can be either 14 years or imprisonment for life. In the latter case, the prosecution has to prove that at the time of the commission of the crime;

1. the offender was armed with or pretended to be armed with a dangerous or offensive weapon or instrument,
2. he/she  was in company with one or more persons, or
3. he/she wounded or used any other personal violence to any person.

Robbery is considered to be an indictable offence, and therefore it is dealt with in the District Court.

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