Credit Card Theft and Jail Time in NSW

Credit Card Theft Jail Time NSW Australia | Credit Card Fraud Punishment

For credit card theft, the penalty would be based on the assumption that the physical card is worth $2,000 or less, which would attract penalties of 2-years imprisonment and/or $2,200 fine.

The below table outlines the Local Court penalties of imprisonment and fines for larceny depending on the value of the stolen property, according to sections 267 and 268 Criminal Procedure Act.

The above table outlines the maximum penalties that apply if the larceny offence is summarily disposed of in the local court.

If a larceny offence is to be disposed of in the District Court, then the maximum penalty for a larceny offence in the District Court is 5-years imprisonment, according to section 117 Crimes Act 1900 (NSW).

The offence of stealing a credit card is essentially a crime of stealing the physical rectangle item called a credit card.

Using that credit card to make purchases or withdraw funds without permission is also a type of stealing otherwise known as obtaining a financial advantage by dishonesty and deception which carries heavier penalties which we have discussed in a separate article to this.

Due to advances in technology, credit card theft also now encompasses perpetrators accessing victims credit cards online. This offence would more appropriately fall in the offences od obtaining financial advantage by dishonesty and deception, which is a common form of white-collar crime.

Types of Larceny and Stealing Offences

There are many types of larceny offences. The more common are bag snatching, including snatching credit cards and robbery. Credit card and identity theft is another common but serious offence in New South Wales.

Being in possession of a stolen credit card can also land you in trouble facing criminal charges of Goods in Custody suspected of being stolen or otherwise unlawfully obtained (s527C), and/or dealing with property suspected of being proceeds of crime (s193C).

The offence of dealing with proceeds of crime is found in section 193 Crimes Act 1900 (NSW).

How to Prove Larceny for Credit Card Theft

In essence, a larceny or stealing offence occurs if you intentionally and dishonestly take and carry away property belonging to another, with the intention of permanently depriving the owner of it, without consent and without an honest but mistaken claim of legal right to it.

If the court is satisfied as to the above beyond reasonable doubt, which is an onus that the prosecution must discharge, then you will be found guilty of the crime of larceny in New South Wales.

To elaborate further on this, each of the following elements must be proven in order to be found guilty of larceny:

1. You took and carried the item in question away (being some physical movement of the item by you),
2. What you took and carried away was owned, controlled or possessed by someone other than you,
3. You did this with the intention of permanently depriving that person,
4. You did this without the consent of that person,
5. You did this dishonestly, in the sense that you intentionally took and carried it away without mistake, knowing that the item belongs to that person (dishonest according to current standards of ordinary decent people (R v Glenister (1980) 2 NSWLR 597),
6. You did not have a genuine belief of a legal right to the item in question at the time of taking it, even though you’re mistaken as to that belief. This is not an objective test. It is subjective. This is the claim of right defence that can be raised.

Claiming that you intentionally took the property but intended to eventually restore the property or return the equivalent sum of money back does not result in an acquittal to the offence of larceny. It will still be considered a larceny offence warranting criminal penalties. This was expressed in the case of Foster v The Queen (1968) 118 CLR 117.

The Claim of Right Defence for Credit Card Thefts

The claim of right defence for a larceny offence only works if a the time of taking the property in question, you also honestly believed that you had a legal right to it even though you are mistaken.

Once the evidence raises this claim, the prosecution bear the onus to negate that claim beyond reasonable doubt. It must thereby exclude any reasonable possibility or inference available from the evidence that the accused honestly believed he/she had a legal although mistaken right to the property.

The claim of right does not have to be well founded in fact or law. It simply must be genuinely held.

A colourable pretence that you believed you had a legal right to the property stolen is not sufficient and won’t successfully make out a claim of right defence.

The claim of right defence does not have to be confined to only the physical property or banknote(s) in question. It also extends to taking something that is of equivalent in value.

The claim of right defence is found in the case of R v Fuge (2001) 123 A Crim R 310.

Do Police Investigate Credit Card Theft?

Usually, police will commence investigations into credit card theft after a complaint is made or a tip off. This could come from a credit card agency or department or from someone who wishes to remain anonymous. This will lead to the creation of an “event number” which is used to identify the investigation within the NSW Police force system.

Investigations may lead to a person or persons being arrested and charged by police if the police form the view based on the evidence gathered by that stage that that person is the perpetrator of the theft. The accused person will then be offered an opportunity to give an interview.

When offered to give police an interview, it is important to keep in mind that it is not mandatory to give an interview. Refusing to give one does not mean that the police will cause more trouble your way as a result. Nor does it mean that you are guilty by exercising your right to silence. It is critical to ask to be given an opportunity to speak to a lawyer for legal advice before agreeing or refusing an interview.

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