(08) 9278 2575Shoplifting Laws in WA
Shoplifting is a common crime in Western Australia, costing retail businesses millions of dollars each year. Moreover, a successful prosecution for shoplifting could result in substantial fines, a lasting criminal record and, in some cases, a term of imprisonment.
The following explains how shoplifting is charged in WA, elements that must be proved and the criminal penalties that may apply.
The Offence of Shoplifting (Stealing) in Western Australia
There is no offence called “shoplifting” in Western Australia, with the act encompassed by the general offence of stealing under section 371 of the Criminal Code Compilation 1913 (WA) (‘the Code’). This offence defines ‘stealing’ as the fraudulent taking or conversion of property belonging to another with intent to permanently deprive the owner of it.
Retail goods, including clothing, groceries, electronics and cosmetics, are clearly “property” capable of being stolen. Further, a variety of actions could constitute the act of stealing within a shoplifting context, including walking out with goods without paying, altering price tags, barcode switching or otherwise manipulating pricing.
A common misconception is that a person must leave the store to be charged with shoplifting. That is not correct as the offence of stealing can be complete once goods are dishonestly appropriated, even if the person is intercepted before exiting the premises. Concealment of items combined with intent to permanently deprive can be sufficient.
Private Security and Investigations of Shoplifting
In many cases, allegations of shoplifting will often first be dealt with by private security guards within a retail store or shopping centre rather than by the police.
It’s important to know that private security do not have the same law enforcement powers as WA Police, and it’s important to know your rights when interacting with them.
Whilst private security can temporarily detain a person for a “reasonable period” if they reasonably suspect them of committing a serious indictable offence (also known as a “citizen’s arrest”), this is limited to temporary detainment in order for police to attend. Private security cannot compel you to answer questions, cannot conduct a personal search without your consent and cannot impose fines or penalties.
If suspected of shoplifting, you should remain silent and not consent to any search of your bags or person. Once police arrive, you should be mindful of your formal rights when being questioned by police.
Maximum Penalties for Shoplifting in Western Australia
The maximum penalty for shoplifting in WA depends on whether the offence is dealt with summarily in the Magistrates Court or prosecuted on indictment in the District Court, which in turn is influenced by factors such as the value of the goods, prior offending and the circumstances of the offence.
Where shoplifting is dealt with as a summary offence in the Magistrates Court, section 378 of the Code provides a maximum penalty of 2 years imprisonment and/or a fine of $24,000. This is the most common pathway for low-value shoplifting matters, particularly where the offender is a first-time offender, and the conduct is not part of an organised or persistent pattern of theft.
If the prosecution elects to proceed on indictment in the District Court, the maximum penalty increases significantly. Under section 378 of the Code, stealing prosecuted on indictment carries a maximum penalty of 7 years imprisonment. Indictable prosecution is generally reserved for more serious cases, such as repeat offending or shoplifting involving high-value goods.
In some cases, low-level shoplifting may be dealt with via a police caution, particularly if the shoplifting is done by children or first-time adult offenders. There is no automatic entitlement for a caution, but they are commonly given in simple shoplifting cases.
Defences to Shoplifting Charges in WA
For the offence of shoplifting, the prosecution must prove beyond reasonable doubt that you fraudulently took goods belonging to another with the intention of permanently depriving them.
A commonly raised defence in shoplifting matters is the lack of an intent to permanently deprive the store of the goods. This defence may apply if a person was busy or distracted and didn’t realise they forgot to check out the items or where they weren’t aware that they left the store’s premises.
A ‘mistake of fact defence’ under section 24 of the Code is also an available defence to stealing. This defence applies when a person honestly and reasonably but mistakenly believed something was true. In the case of shoplifting, this might apply where a person honestly believed they had scanned an item at the self-checkout or that a transaction had been successfully completed.
Finally, since the offence of stealing requires dishonesty, another commonly raised defence is where there was no evidence of a fraudulent taking. If the conduct (such as walking out of the store with the goods or leaving the petrol station without paying for fuel) is the result of an oversight or mistake or confusion, and the matter was corrected by the person immediately returning the goods or paying for them, this may indicate that the goods were not taken with fraudulent intent. Again, each case turns on its facts, including the person’s behaviour before, during and after leaving the store.
The Importance of Obtaining Legal Advice for Shoplifting Charges
Being charged with shoplifting, or stealing under WA law, is a serious matter, with penalties ranging from fines to imprisonment depending on the value of goods and the circumstances of the offence. Even first-time or low-value matters can carry long-term consequences, including a criminal record.
If you are facing allegations of shoplifting in Western Australia, it is essential to seek guidance from an experienced criminal lawyer. Andrew Williams is a highly skilled Criminal Lawyer and Barrister who can provide expert advice, protect your rights, and help achieve the best possible outcome for your case.
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PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.
