What is the Law and Penalties for Larceny by Clerk or Servant in NSW?

By Sahar Adatia and Jimmy Singh.

 

Chances are, most people have stolen something at least once in their lives. For some of us, it’s merely the pen at the bank or the box of tissues from the hotel room, strangely because we enjoy the rush of stealing.

For others, it’s a means to survive while struggling through huge economic hardships. For another segment altogether, stealing is simply carried out to prove independence or to act out against family.

And then of course there are the cases where the motivations of theft are downright perplexing, leaving us scratching our heads.

One such occurrence that made its way into headlines took place on 25 October 2018 when a 56-year-old woman from Perth was sentenced to six years and two months in jail after stealing a total of more than $1.2 million from two separate small businesses, simply because she “liked having nice things”.

Lynette Alison Corrie, who admitted to her ongoing theft simply to be able “to go out shopping” and “have coffee with friends” amongst the “nice things” she enjoyed, pleaded guilty at the Western Australia District Court to 32 counts of stealing as a servant between November 2009 and June 2017.

During this period, she was employed as an administration manager at two businesses and carried out 389 separate transactions totalling a whopping $1,218,850.

On each of these occasions, the money was transferred from the businesses’ bank accounts into an account that was held jointly between her and her husband.

Where it All Began: Corrie’s Thieving History From 2009 – 2017

Corrie began her role as an administration manager for a window manufacturer named Excell Décor Hardware and a matter of weeks later, she began transferring cash from the business into her own bank account. Between 2009 and 2014, she stole almost $700,000.

In mid-2014, the small family-owned business ran into cash-flow problems before eventually going into voluntary administration, when Corrie took on another job as an office manager with a plumbing and electrical business known as Eltech Services. All the while, she continued stealing from Excell Décor Hardware. In total, she pocketed $689,866 via 199 transactions over the five years.

It took Corrie only nine days of working with the new business for her to begin stealing money again, this time disguising transfers as payments to legitimate creditors. Under this cover-up, she managed to pilfer $520,487 via 153 transactions stretching from late 2014 to June 2017, at which point she was confronted by two company directors.

In July 2017, when asked about the motivation behind the thieving by the company directors, Corrie confessed to her crimes and her puzzling impetus for “having nice things” suddenly surfaced.

It was not long until police got involved and investigations into Corrie’s previous employment at Excell Décor Hardware led to her thieving history being uncovered.

Corrie’s Actions Deemed “Catastrophic” for the Businesses by Judge Linda Petrusa

At Corrie’s Court hearing, District Court Judge Linda Petrusa said she had “no doubt” that her crimes significantly contributed to the collapse of Excell Décor Hardware and the impact of Corrie’s offences had been devastating for the owners of both businesses.

Speaking of the blow to the 60-year-old man who owned Excell Décor Hardware, Judge Petrusa said the impact on him and his family had been “catastrophic”. It had also affected their self-confidence and capacity to trust people.

“You had a front row seat when you worked for Excell Décor Hardware to see the decline of that business and the effect on your employer and other staff,” Judge Petrusa said.

“Notwithstanding that front row seat, you went on to commit the same offence in your next employment.”

Describing Corrie’s offences as an “enormous” betrayal, she also highlighted that the total of cash transfers from both companies topped up her $40,000 salary on average an extra $160,000 per year, tax free.

While the Judge accepted Corrie’s sense of remorse, she said her dishonesty was sustained and persistent.

A “bewildering” case: Corrie’s Lawyer Stumped by Lack of Motive

Defence lawyer Tom Percy described Corrie’s circumstances as “bewildering” in that his client did not have any drug, alcohol or gambling issues. Nor did she have any financial problems. Rather, it was simply the case that she committed the offences because she wanted to live comfortably.

Furthering this, he said there were no extravagant trips taken or purchases of expensive jewellery made. Instead, Corrie appeared to have spent the money on “everyday expenses, paying bills and shopping”.

“At the end of the day, she has very little to show for it,” Defence Percy said.

However, Judge Petrusa said Corrie was “living well beyond her means”, highlighting that she spent the $1.2 million “enjoying life” well above and beyond what her income would otherwise sustain.

“Having access to that much extra money must have enhanced your lifestyle,” Judge Petrusa said.

She also emphasised that most of the community struggle in their lifetimes to reach $200,000 a year salaries, and if they did, it tended to be at the end of a dedicated and illustrious professional career built over many years.

Judge Petrusa described Corrie’s crimes as the worst example of their type, especially because her employers trusted her.

Corrie will have to serve just over four years of her jail sentence of six years and two months before she can be released on parole. She has repaid $325,000 of the $520,000 she pilfered from Eltech Services and was ordered to compensate Excell Décor and Hardware for the $698,000 she stole from them.

The Law and Penalties for Larceny by Clerk or Servant Charges in NSW

Sentencing lengths are depend on the value of the property stolen. Specifically, when the matter is finalised the Local Court, a person guilty of larceny by clerk or servant in NSW will face the following maximum penalties:

  • A penalty of up to $11,000 fine and/or 2 years imprisonment if the value of the item stolen was more than $5,000;
  • A penalty of up to $5,500 fine and/or 2 years imprisonment if the value of the item stolen was more not more than $5,000;
  • A penalty of up to $2,200 fine and/or 2 years imprisonment if the value of the item stolen was not more than $2,000.

Where the value of the property stolen is more than $2,000, the proceedings can be dealt with in the District Court (instead of Local Court) if an election is made. In that situation the maximum penalty a District Court Judge can impose is up to 10 years imprisonment pursuant to section 156 of the Crimes Act 1900 (NSW).

What is larceny in NSW? You will be guilty of a larceny by clerk or servant charge if the prosecution can prove each of the following elements of the crime beyond reasonable doubt in court:

  1. You stole a property; and
  2. That property belonged to your employer (or it was in your employer’s possession or power, or it converted or exchanged into your employer’s possession or power); and
  3. At the time you stole it, you were employed by the employer (who owned or had possession of the stolen property).

To prove stealing, the police must prove each of the following elements:

  • The property belonged to the employer (i.e. the employer either owned, controlled or possessed the property); and
  • You took and carried the property away with the intention of permanently depriving the owner of it; and
  • You were dishonest in the sense that you did this with the intention of taking the property without mistake and knowing that it’s not your property; and
  • You did that without the owner’s consent; and

In NSW, the offence of Larceny by Clerk or Servant refers to a situation where property belonging to your employer is stolen.

Common examples of the offence include taking cash from the till, transferring money from business accounts to a personal account, pocketing sale stock from the business and keeping it. It is considered a serious offence by the courts as it is a form of fraud and involves a breach of trust.

What does ‘property’ mean? Here, the term “property” includes every description of real and personal property; money, valuable securities, debts, and legacies; and all deeds and instruments relating to, or evidencing the title or right to any property, or giving a right to recover or receive any money or goods; and includes not only property originally in the possession or under the control of any person, but also any property into or for which the same may have been converted or exchanged, and everything acquired by such conversion or exchange, whether immediately or otherwise.

Defences to Larceny by Clerk or Servant Charges in NSW

Your larceny by clerk or servant charge can be dismissed if any one of the following defences apply:

  1. Claim of Right: You will be not guilty if you take property in circumstances you genuinely claim that you were legally justified in taking the property, even if you were legally wrong in that claim. This claim must be honestly held but cannot be anything other than a legal entitlement (it cannot be a moral entitlement). Once this claim is made by an accused, your charge will be dismissed unless the prosecution negative that claim beyond reasonable doubt. (R v Fuge (2001) 123 A Crim R 310)
  2. You will be not guilty of larceny by clerk or servant if you take a property belonging to another without an intention of permanently depriving the owner of it at the time of taking it. This can prove to be a difficult defence given the intention to permanently deprive the owner can be inherent within the act of taking something that belongs to another.
  3. Duress or Necessity.
  4. The owner of the property consented for you to take it.

Can You be Guilty of Larceny if You Take Property with the Intention of Restoring it to the Owner?

You will be guilty of larceny if you take a property with the intention of using it for your own benefit (or for the benefit of another), even if you intended to eventually return it to the owner.

For an outline on the penalties and defences to shoplifting charges, see our recent article on the law on shoplifting in NSW.

When preparing for a sentence for a larceny charge, it’s important to prepare compelling reference letters expressing certain critical points for the Court to read. For a guide on how to do this, see sample good character letter.

Have any questions arising from this blog? Our lawyers appear in all courts specialising in criminal cases.

Our experienced lawyers are available 24/7 to answer your questions with criminal lawyers in Blacktown, Newcastle, Wollongong and Campbelltown.

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