Stealing (ADD DISCUSSION OF ILLICH)
WRITE: Stealing defined in s391 CC as when a a person who fraudulently takes anything capable of being
stolen, or fraudulently converts to the person’s own use or to the use of any other person anything capable of
being stolen, is said to steal that thing. The offence is created and punished in s398(1) CC. Prosecution must
prove all elements beyond reasonable doubt and the punishment is 5 years imprisonment but can be increased if
Include aggravation if applicable.
• Life imprisonment if the thing stolen is a testamentary instrument (s 398)
• 14 years’ imprisonment if the thing stolen is a firearm (intended for use in the commission of an indictable
offence) or a vehicle (s 398, )
By 10 years’ imprisonment in a range of circumstances such as –
• where the thing is stolen from the person of another (s 398(a))
• where it is stolen in a dwelling house and exceeds $1000 in value or was taken with a threat of violence
• where it is stolen from a vehicle (s 398(c))
• where there is a relationship between the stealing and the accused’s position (such as public servant,
clerk, servant, company director, agent or tenant) (ss 398-, )
• where the value of the thing exceeds $5000 or after previous conviction (s 398, )
• where the thing stolen is firearm (s 398)
Has [accused] committed stealing?
1. Is [item stolen] capable of being stolen?
WRITE: [Item stolen] is property as it is [below subsection] and falls under s1 [below subsection] CC.
(a) Every thing animate or inanimate that is capable of being the subject of ownership;
(c) Electrical or other energy, gas and water;
(d) A plant;
(e) An animal that is –
(i) A tame animal, whether or not naturally tame;
(ii) An untamed animal of a type that, if kept is usually kept confined; or
(iii)An untamed animal in a person’s possession or being pursued for return to possession after escape;
(f) A thing produced by an animal mentioned in paragraph (e); and
(g) Any other property real or personal, legal or equitable, including things in action (i.e. money in bank) and
other intangible property.
WRITE: [Item stolen] is property capable of being stolen as it is [moveable/capable of being made moveable]:
Capable of being made moveable: Billing v Pill [UK] (Dismantled army hut that was bolted to concrete thus
attached to realty = made moveable).
Money in Bank (Previously unable to steal as money was a chose in action: Croton) however now under new s1
definition of property, can be stolen. Identity of actual owner need not be known: R v McKiernan (original owner unknown); R v Flood (dead
• Property can be stolen when does not make reasonable efforts to discover owner: s391(5).
• Can steal from person whose possession is unlawful: s391(7).
WRITE: Therefore [item stolen] is/isn’t capable of being stolen.
2. Has [accused] asportated the [item stolen]?
WRITE: Here, [accused] has/hasn’t actually moved or dealt with the property by some physical act.
• Enough to have movement and intent to steal: Wallis v Lane (Theft of bicycle accessories by truck driver
by moving to different spot within delivery truck).
• Offence not complete just because goods have been moved: Johnson + s396(6). (Lookout during robbery
warned after goods moved from store).
• Need some movement: Bogacki (Tried to start car, not stealing).
• Movement need only be minimal: Lapier
3. Has [accused] fraudulently taken or converted the [item stolen]?
WRITE: Despite CL requiring taking to be non-consensual CC doesn’t: Illich.
Taking bears it’s ordinary meaning and here, [Accused] has/hasn’t taken the [item stolen].
• Immaterial whether the thing converted is taken for purposes of conversion, or at the time of conversion
in the possession of the person who converts it: s391(4)
• Immaterial that the person who converts is the holder of the power of attorney for the disposition of it, or
otherwise authorised to dispose of the property: s391(4A)
Non-return of video game after long time (Not amount to conversion - must be more than passive possession):
R v Angus.
Selling property: Powell (Particularly if under value: Gunderson v Miller)
Changing it’s appearance: Russell
Conversion is not defined in the CC but has been defined by CL: CJ Gibbs in Illich.
Here, [accused] has/hasn’t dealt with the goods in a manner inconsistent with the true owner’s rights by
In doing this [accused] showed an intent to [denied the owner’s rights AND/OR asserted a right inconsistent
with the owner’s rights]:.
Therefore [Accused] has/hasn’t converted the [item stolen].
WRITE: Therefore [Accused] has/hasn’t [taken AND/OR converted] the [item], however this must have been
done fraudulently: R v Angus; s391(1) and (2). Special Category: