The difference is in the taking….
Stealing, Stealing from the Person and Robbery: What Is the Difference in NSW?
The public often use the words stealing, theft and robbery interchangeably. However, under NSW criminal law, they describe offences with important differences as well as with different penalties and seriousness.
The key differences are:
Where was the property taken from?
Was force or a threat of violence used?
When was that force or threat used?
These distinctions can significantly affect the charge, the prosecution's case and the maximum penalty.
This blog is to explain the differences between the offences, and we start with -
Stealing or larceny- (the least serious)
In NSW, the basic offence commonly called stealing or theft is generally known as larceny. Section 117 of the Crimes Act 1900 (NSW) provides a maximum penalty of five years' imprisonment, although the penalty imposed in an individual case depends on the circumstances and the court dealing with the matter.
Broadly, the prosecution must prove that the accused:
took and carried away property belonging to another person;
did so without the owner's or possessor's consent;
acted dishonestly; and
intended to permanently deprive the owner or possessor of the property.
Even a slight movement of the property can be sufficient to amount to taking and carrying it away. The slight movement is called ‘asportation’.
Common examples may include:
taking merchandise from a store without paying;
taking an unattended bicycle;
removing money from someone's bag while the bag is elsewhere; or
taking property from a workplace with the intention of keeping it.
Ordinary larceny does not require proof that the property was taken directly from a person, or that violence or threats were used. It does however require the property to be moved, with a dishonest intent, and for there to be an intention to permanently deprive the item from the owner.
Stealing from the person-(more serious)
Stealing from the person is dealt with under section 94 of the Crimes Act 1900 (NSW). It is more serious than ordinary larceny and carries a maximum penalty of 14 years' imprisonment. The same section also deals with robbery and assault with intent to rob.
The prosecution must prove the usual elements of stealing and must also establish that the property was taken from the person of another.
This means taking property:
from the person's body, such as from their hand, pocket or clothing; or
from their immediate presence and control.
The property must be completely removed from that person's possession or immediate control.
A typical example is pickpocketing: a wallet is secretly removed from someone's pocket without the use of force or threats. Another possible example is quietly taking a phone from a table immediately beside its owner.
The critical distinction is that stealing from the person does not necessarily involve violence or intimidation. It concerns the proximity of the property to the person from whom it was taken. It is more invasive and personal to the alleged victim of the offence - as it is involves an act that is personal.
Robbery - (the most serious)
Robbery combines elements of larceny and violence or intimidation. It also falls under section 94 and carries a maximum penalty of 14 years' imprisonment in its basic form.
In broad terms, the prosecution must prove that:
the accused unlawfully took and carried away property; (same as larceny)
the accused intended to permanently deprive the owner or possessor of it; (same as larceny)
the property was taken from another person's body, presence, or immediate personal care and protection; (same as steal from the person)
the taking was dishonest and without consent; and (same as larceny and steal from the person)
the property was taken by actual violence or by putting the person in fear of violence. (this is the distinction between larceny or steal from the person and a robbery)
The force or threat must generally occur before or at the same time as the taking. Violence used only after an otherwise completed theft -, say to escape, does not automatically turn the earlier stealing into robbery, although it may constitute another offence.
Examples of conduct that may amount to robbery include:
demanding a person's wallet while threatening to assault them - “Give us ya wallet or I’ll bash your head in”
striking someone and taking their phone - “Belting someone over the head and taking their phone from their hand”
pushing a person down to take their bag; - “Pushing an old lady over and taking their bag from their hands’
threatening immediate violence to force someone to hand over property - “Give me your money or I will stick this knife in ya guts”
Whether a particular physical act is sufficient to constitute force can depend on the facts. The prosecution must connect the violence or threat to the taking of the property. Its not enough for there to be a gun pointed at someone and they hand over the money after this occurs. The person handing over the money must have done it because they were in fear.
R v Dugan [1984] 2 NSWLR 554 was a great case that I learnt about whilst a Police Officer. It concerned Darcy Dugan entering a service station intending to rob it with a firearm that had been given to Darcy by a police informant. The Police had ensured the firearm supplied to Darcy was not capable of firing. The attendant was a police officer who knew (or at least hoped at the time) that the weapon was not real, so Dugan was acquitted of armed assault with intent to rob but convicted of entering a building with intent to rob.
The NSW Court of Criminal Appeal held that the acquittal did not prevent the ultimate conviction as entering with an intention to rob was a separate offence, and the intended robbery did not need to be successfully carried out. The case is therefore mainly authority about alternative or apparently inconsistent verdicts, rather than a general ruling that robbery always requires the victim to be subjectively frightened
What about assault with intent to rob?
Section 94 also covers assault with intent to rob. This offence may arise where a person assaults someone with the necessary intention to commit robbery, even though no property is successfully taken.
For example, if a person threatens or assaults another person while demanding money but leaves empty-handed, the absence of a completed taking does not necessarily mean that no robbery-related offence has occurred.
Aggravated robbery offences
More serious charges may apply where additional circumstances are alleged, including:
aggravating conduct involving corporal violence;
intentionally or recklessly inflicting actual bodily harm;
depriving a person of their liberty;
being armed with an offensive weapon or instrument;
acting in company with another person;
wounding or causing grievous bodily harm; or
using an offensive weapon in a manner covered by the legislation.
These offences are addressed in sections 95 to 98 of the Crimes Act 1900 and can carry substantially higher maximum penalties. The exact wording of the charge is therefore important.
Why the distinction matters
A case that initially sounds like "stealing" may result in a much more serious charge if the property was taken directly from someone's body or immediate control. If force or a threat was used to obtain the property, the allegation may instead amount to robbery.
Small factual details can be decisive, including:
where the property was located;
whether the owner was present;
whether the owner remained in immediate control of it;
what words or physical actions were used;
whether the complainant was placed in fear; and
whether any force occurred before, during or only after the taking.
Anyone charged with one of these offences should obtain legal advice about the particular allegations, the available defences and the potential penalties. Shiels Lawyers can assist you with any legal advice you need!