South Australian Current Acts

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CRIMINAL LAW CONSOLIDATION ACT 1935 - SECT 134

134—Theft (and receiving)

        (1)         A person is guilty of theft if the person deals with property

            (a)         dishonestly; and

            (b)         without the owner's consent; and

            (c)         intending—

                  (i)         to deprive the owner permanently of the property; or

                  (ii)         to make a serious encroachment on the owner's proprietary rights.

Maximum penalty:

            (a)         for a basic offence—imprisonment for 10 years;

            (b)         for an aggravated offence—imprisonment for 15 years.

        (2)         A person intends to make a serious encroachment on an owner's proprietary rights if the person intends—

            (a)         to treat the property as his or her own to dispose of regardless of the owner's rights; or

            (b)         to deal with the property in a way that creates a substantial risk (of which the person is aware)—

                  (i)         that the owner will not get it back; or

                  (ii)         that, when the owner gets it back, its value will be substantially impaired.

        (3)         It is possible to commit theft as follows:

            (a)         a person may commit theft of property that has come lawfully into his or her possession;

            (b)         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.

Example—

Suppose that land is vested in a trustee in a fiduciary capacity. She is empowered under the instrument of trust to mortgage the land for the purposes of the trust. The trustee dishonestly mortgages the land as security for a personal liability that is unrelated to the trust. In this case, the trustee commits theft of the interest created by the mortgage.

        (4)         If a person honestly believes that he or she has acquired a good title to property, but it later appears that the title is defective because of a defect in the title of the transferor or for some other reason, the later retention of the property, or any later dealing with the property, by the person cannot amount to theft.

        (5)         Theft committed by receiving stolen property from another amounts to the offence of receiving but may be described either as theft or receiving in an instrument of charge and is, in any event, punishable as a species of theft.

        (6)         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.



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