Stealing as a servant

Our experienced criminal lawyers have prepared a brief overview of the law relating to stealing as a servant.

If you or someone you care about is facing a charge of stealing as a servant, you need specific advice and should contact Gatenby Criminal Lawyers on 55800120 for advice.

For more information on other criminal charges, visit DISHONESTY OFFENCES.

Stealing as a servant – The Law

Section 398 of the Criminal Code of Queensland creates the offence of stealing.  The section provides:

Any person who steals anything capable of being stolen is guilty of a crime.  If the offender is a clerk or servant, and the thing stolen is the property of the offender’s employer, or came into the possession of the offender on account of the offender’s employer…

Elements of the offence

To be found guilty of the offence of stealing, the prosecution is required to prove, beyond a reasonable doubt, the following elements:

  1. The accused steals;
  2. The accused is a clerk or servant;
  3. The item was something capable of being stolen;
  4. The item is the property of the accused’s employer.

Definition of Stealing

Stealing is defined in section 391 of the Criminal Code of Queensland to be 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.

Fraudulently taken is said to occur in the following circumstances:

  1. an intent to permanently deprive the owner of the thing of it;
  2. an intent to permanently deprive any person who has any special property in the thing of such property;
  3. an intent to use the thing as a pledge or security;
  4. 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;
  5. an intent 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;
  6. in the case of money—an intent to use it at the will of the person who takes or converts it, although the person may intend to afterwards repay the amount to the owner.

Definition of Property

Property is defined in section 1 of the Criminal Code of Queensland.  It includes:

  1. every thing animate or inanimate that is capable of being the subject of ownership; and
  2. money; and
  3. electrical or other energy, gas and water; and
  4. a plant; and
  5. an animal that is—

    (i) a tame animal, whether or not naturally tame; or

    (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; and

  6.  a thing produced by an animal mentioned in paragraph (e) ; and
  7.  any other property real or personal, legal or equitable, including things in action and other intangible property.

Maximum penalty

The maximum penalty for an allegation of stealing as a servant is 10 years imprisonment.

Jurisdiction – Where will the matter be heard?

The offence of stealing is an indictable offence.

The charge will initially be commenced in the Magistrates Court, and can usually be finalised in the Magistrates Court.  For some offences, where there is a circumstance of aggravation the matter must proceed on indictment to the District Court of Queensland.

Conviction – Does a conviction have to be recorded?

The sentencing Court has a discretion whether or not to record a conviction against you for the offence of stealing.  Generally a conviction would be recorded for this type of offence, although one is not inevitable.

In R v Bryant [2005]QCA 19, Justice McPherson made the following observation about the need to record convictions for this offence:

… I consider that prospective employers are entitled to know about such matters and to make up their own minds about the risks involved in employing persons who have committed offences of this kind. It is no part of or function of judges to conceal such information from them.

The relevant factors are set out in section 12 of the Penalties and Sentences Act 1992, and include, the nature of the offence, the offenders character and age, together with the impact the recording a conviction would have on the offenders chances of finding employment. If you are concerned about a conviction being recorded on you or a loved you should seek legal advice.

For legal advice specific to your matter, you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.