Stealing from Your Employer: What Are the Penalties for Committing Larceny as a Clerk?

In 2014 Emma Greene a receptionist for Unanderra Physiotherapy and Pilates was charged with larceny as a clerk when she stole over $11,000 from her employer by deleting 202 invoices from a computer accounting software program and pocketing money paid by customers over a 16-month period. Despite statements that indicated security and procedures were quite lax at the business, the court found her guilty of larceny by a clerk.

In 2015, the manager of a credit union was charged with larceny by clerks or servants after embezzling more $745,000 over 12 years. The defendant allegedly physically removed cash from cash drawers and ATMs and then falsified bank records. She told a co-worker that her gambling habit compelled her to commit fraud.

A 44 year old Sydney man employed as a cash-in-transit security guard stole $200,000 from ATMs. He took the money over a relatively short time, between March and June 2013. He was arrested and charged with six counts of steal property as a clerk/servant.

The New South Wales Bureau of Crime Statistics and Research tracks crime using an offence classification system. Larceny by a clerk or servant falls within BOCSAR’s fraud category, which is a part of the much larger theft group of crimes. Between 2010 and 2014, New South Wales saw a 7.5 percent increase in recorded criminal incidents involving fraud. In 2014 alone, there were close to 50,000 recorded incidents of fraud. Present day larceny as a clerk still involves taking property belonging to an employer. However, technology has opened an entirely new realm of possibilities in terms of larceny in the workplace.

Likely since the first humans claimed items as ‘their own,’ there has been larceny. Larceny is stealing (sometimes referred to as theft). History is chock-a-block with accounts of feuds based upon someone taking another’s property. “Larceny as a clerk or servant” may sound archaic to modern ears, a crime more applicable to a time of mansions, servants and social privilege. Nonetheless, it remains a crime in New South Wales involving a worker stealing from an employer.

The Crimes Act of 1900 sets forth the crime of larceny by clerks or servants:

Whosoever, being a clerk, or servant, steals any property belonging to, or in the possession, or power of, his or her master, or employer, or any property into or for which it has been converted, or exchanged, shall be liable to imprisonment for ten years.

Convicting someone of larceny by a clerk or servant requires that the prosecution prove all of the following:

• The property belonged to someone other than the accused.
• The property must be taken and carried away.
• The property must be taken without the consent of the owner.

Additionally, elements regarding the alleged defendant’s state of mind must be proven:

• The property was taken with the intent to permanently deprive the owner of it.
• It was taken without a good faith claim of right to the property.
• It was taken dishonestly.

Proving larceny by clerk or servant also requires that the defendant be in the role of servant or clerk relative to the person whose goods were taken.

Why Do People Commit Larceny?

While only one of the cases mentioned above specifically mentioned gambling as the reason for committing theft by a clerk, a gambling addiction might explain an individual’s motivations to steal. About one percent of Australia’s adult population have a severe gambling problem, and another 1.1 percent have a moderate problem. Obviously, a gambling addiction does not mean a person is a criminal, but certain studies reveal some connection between the two, with between 30 and 60 percent of study subjects having involvement with illegal acts related to their gambling problems. One 1999 study shows gambling as the second highest primary motivation of convicted fraud offenders, accounting for about 15 percent of respondents. This far surpassed addiction to drugs and alcohol as a motivation (two to three percent).   

Penalties for Larceny by Clerk

Fines are a common penalty for larceny. Typically, fines are imposed according to the value of the property stolen. In NSW, courts use penalty units to calculate the fines due from someone found guilty of an offence. In NSW, one penalty unit equals $110. For example, if the value of the goods stolen exceeds $5,000 the maximum penalty is limited to two years imprisonment and/or 100 penalty units.

Statute imposes a maximum of 10 years’ imprisonment for larceny by a clerk. Sentencing lengths depends upon the worth of the goods stolen. Other factors, including previous criminal history, may play a part in sentencing.

However, punishments for larceny by clerk are not limited to jail time. NSW courts may also order other forms of detention including: a suspended sentence, Intensive Correction Orders (ICOs), or home detention (or house arrest). Courts can also impose community service as a penalty for larceny.

Defences to a Charge of Larceny by a Clerk

State of mind plays a huge role in determining guilt. As a result, most common defences used in larceny cases consider what the person was thinking at the time the crime was committed.

Sometimes an individual genuinely believes that he or she was legally justified in taking property. They may be completely incorrect in claiming a legal justification. Nevertheless, if their belief is proven, and even if they took the property, they are not guilty of stealing. The courts view this as a question of legal right. It is not a consideration of the individual’s belief they had a moral entitlement to the property. Other related considerations are whether the property was taken with the intent to permanently deprive the owner of it, and whether it was taken dishonestly.

Courts may consider the duress defence, which asserts that a defendant acted involuntarily due to threats of death or serious injury. Another similar defence is necessity. It requires the presence of circumstances where a criminal act is done because the individual believes not doing so would result in serious harm to the individual or those he or she is bound to protect.

Criminal Records

Paying a fine may seem a minor punishment. Even house arrest or intensive corrections may seem doable. However, criminal records stay on the books for a long time, and can have an impact on job applications, amongst other things.

On the brighter side, someone with a generally good character can maintain a clean criminal record by being awarded a ‘section 10’ which is basically a dismissal where there is no criminal conviction or any fine. Additionally, there is the concept of spent convictions, involving a defendant receiving a pardon for a reason other than wrongful conviction or receiving either no prison sentence, or a prison sentence for not more than 30 months.

If you have been charged with larceny as a clerk and want to achieve the best outcome possible in court, call one of our criminal defense lawyers for a no obligation consultation.