August 9, 2021
Alexander Angel-Graham

There exists an important distinction between the category of offences regulating offences against property and offences against property and persons: larceny and robbery. Larceny involves taking property without the use of force. Whereas robbery involves taking property from a person through force or the threat of force. Though they have similar elements, each crime has distinctly different definitions, requirements, and penalties. For larceny, the penalties may range from no conviction to short periods of incarceration, while robbery may include long jail sentences of several years.

Larceny in New South Wales

The offence of larceny is governed by s 117 of the Crimes Act 1900 (NSW) and is committed when “a person who, without the consent of the owner, fraudulently and without the claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof”: Ilich v I (1987) 69 ALR 231, at [241].

Larceny differs from the offence of robbery in that it does not require any acts of violence to be committed, merely the unlawful taking of property.

Firstly, to be found guilty of larceny the accused must have stolen property of value and property which is moveable. What can constitute 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”: s 4(1) Crimes Act.

The property which has been stolen must belong to another individual and the accused must not have any legal entitlement to be in possession of the property. The possession of the property constitutes the accused’s control over the property, and it must be demonstrated that the accused intended to permanently deprive the victim of their property without their consent. It is not a defence to demonstrate that the accused did not intend to permanently deprive the accused of their property. Section 118 of the Crimes Act specifies that an intent to return property is no defence to the offence of larceny.

Pursuant to s 117 of the Crimes Act if an individual is found guilty of larceny, the maximum penalty is five years imprisonment. However, if the matter is heard summarily there are jurisdictional limits which are imposed which limit the imposition of the full period of incarceration depending upon the amount which is alleged to have been taken:

  • >$5000 – The maximum penalty is two years imprisonment and/or a fine of $11,000, and
  • >$2,200 but <$5000 – The maximum penalty is two years imprisonment and/or fine of $5,500, and
  • <$2,000 – The maximum penalty is two years imprisonment and/or fine of $2,200.
  • Schedule 1 of the Criminal Procedure Act 1986 (NSW) permits an offence under s 117 to be dealt with summarily unless otherwise elected by the DPP.

Robbery in New South Wales

Robbery has often been regarded as a hybrid offence because of the two fundamental elements which required to satisfaction of the offence: an act of violence and a deprivation of property from another person. It has been found that robbery is committed in circumstances whereby violence is exerted onto a victim or threatened to be committed to the “person of the owner or custodian who stands between the offender and the property stolen, in order to overcome that person’s resistance and so to oblige him to part with the property; in other words, the victim must be compelled by force or fear to submit to the theft”: R v Foster (1995) 78 A Crim R 517, at [522].

There are presently five types of robbery offences which an individual may be charged with under Part 4, Division 2 of the Crimes Act. The type of robbery offence in which the accused is charged will be dependent upon the objective seriousness and the circumstances in which the robbery has been committed.

Section 94 Crimes Act – Robbery or stealing from a person

An offence which has been committed under this section requires the accused to have intentionally or with recklessness engaged in unlawfully depriving an individual of their property with the intention of permanently depriving that individual of the lawful possession of their property. The property which the accused has taken possession of must have being taken without the consent of the owner by force or by threatening the victim which has instilled immediate fear of violence and/or harm.

The accused may be charged with an offence under s 94 even if the robbery offence did not involve violent conduct: R v Sloane [1999] NSWDRGC 2, at [13]. This is because “violence may not necessarily be synonymous with the actual use of physical force and [at times] encompasses threats or menaces inducing fear”: R v Sloane, at [13].

Section 94 Crimes Act reads as follows:

“Whosoever –

(a) robs or assaults with intent to rob any person, or

(b) steals any chattel, money, or valuable security from the person of another

Shall, except where a greater punishment is provided by this Act, be liable to imprisonment for fourteen years”.

It should be noted that this is the only robbery offence under Part 4, Division 2 of the Crimes Act which may be dealt with summarily unless otherwise elected to be dealt with on indictment in the District Court by the DPP. Schedule 1 of the Criminal Procedure Act states that where the property which has been stolen exceeds the value of $5,000, the offence constitutes a Table 1 offence. Whilst any property which has been stolen that does not exceed the value of $5,000 constitutes a Table 2 offence.

Section 95 Crimes Act – Same in circumstances of aggravation

If the accused has committed an offence under s 94 whereby, they have robbed or assaulted an individual however accompanied to that robbery were circumstances of aggravation, they may be charged with an offence under s 95 Crimes Act. Circumstances of aggravation are defined under s 95(2) as:

“(2) In this section, circumstances of aggravation mean circumstances that (immediately before, or at the time of, of immediately after the robbery, assault or larceny) involve any one or more of the following –

(a) the alleged offender uses corporal violence on any person,

(b) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person,

(c) the alleged offender deprives any person of his or her liberty.

It must be demonstrated that there were present additional circumstances which may have aggravated the robbery committed by the accused so as to threaten the victim and cause the victim to submit to the robbery. It is importantly noted in s 95(2) that these aggravating circumstances may have occurred “before, at the time, or immediately after the robbery, assault or larceny”. This affords discretion to consider a wide range of conduct which the accused may have engaged in to influence the commission of the robbery, larceny or assault.

Unlike s 94, s 95 does not permit the taking into consideration of a fear of threatened use of violence as a circumstance of aggravation. This was discussed in McDonald v R [2015] NSWCCA 280, at [100]:

“The victim may be threatened and thus submit to the theft; perhaps unusually, force may be used against the victim to effect the theft without a preceding theft, as by a striking from behind. Where the victim is threatened with the use of force, and the force is then used, there is more to the offence, which is more serious than if there is a threat of force alone.

It would be an error in this case to take threatened use of violence into account in aggravation of the offence”.

It is pertinent that there are present additional circumstances, beyond a threatened use of violence, which have effectively aggravated the robbery.

Many of the aggravating circumstances relied upon for a charge under s 95 mirror those utilised under s 21A(2) during sentencing. It has been acknowledged that despite the overlap of aggravating elements, elements recognised as aggravating circumstances under s 21A(2) may be taken into consideration under s 95: Hamze v R [2006] NSWCCA 36, at [26].

Section 96 – Same (robbery) with wounding

Put simply, section 96 is an extension of sections 94 and 95. An individual will be charged with an offence under s 96 where, during the course of a robbery and in circumstances of aggravation, the accused has wounded or inflicted grievous bodily harm onto any person.

Section 96 specifies that the harm may be occasioned against “any person”. The specific language adopted within this provision suggest that the person wounded “need not be the same person as the person struck earlier in time, or the individual towards whom the violence was original exerted against, or need not even be the person who was originally robbed”: Ryan v The Queen (1967) HCA 2, at [223].

Whilst the wounding inflicted onto the victim during the course of the robbery must be voluntary. It has been found that the words “whosoever…wounds in section 96 do not import any intention to wound”: Ryan v The Queen, at [223]. The prosecution must merely demonstrate that the wounding was occasioned by the accused through the striking or use of violence. There is no requirement for the prosecution to demonstrate that “the accused ought to have realised that his act would wound”: Ryan v The Queen, at [223].

Section 97 – Robbery in company/armed robbery

An offence of armed robbery is not simply an offence against property. It is a crime against persons. “The fear engendered by the perpetrator of this crime, together with the continued adverse effects on its victims, established armed robbery to be a serious crime which requires condign punishment”: R v Henry (1999) 46 NSWLR 346, at [99] per Spigelman CJ.

Section 97(1) – “armed with an offensive weapon and/or committed in company”

This subsection requires the accused to “rob or assault with the intent to rob any person” with “an offensive weapon, or instrument, in the company or another”.


In finding that an accused is armed with an “offensive weapon, or instrument”, s 4(1) of the Crimes Act states that the accused must have been in possession of:

  • A dangerous weapon,
  • Anything that is made or adapted for offensive purposes, or
  • Anything that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm”.


If the accused has committed a robbery in the company of another, s 97(1) will apply. The principle of “joint criminal enterprise” exists where two or more persons arrive at an agreement to commit a crime: R v Cotter [2003] NSWCCA 273, at [87]. The agreement which has been entered into between the persons need not be an “express agreement and may be an inference from the parties’ conduct”: Ford v R [2020] NSWCCA 99, at [98].

A judicial officer will be indifferent to the parties’ level of involvement in the criminal enterprise: R v Cotter, at [88] and Ford v R, at [98]. All the parties which are effectively involved in the commission of the crime will be equally guilty of the crime, and any crime committed by a co-offender, despite any level of involvement in the actual commission of the crime: R v Cotter, at [88] and Ford v R, at [98].

Further, if it is established that the accused was, at the time of the commission of the robbery, involved in the joint criminal enterprise, the accused may be held accountable for any incidental crime committed by their co-offender. In Ford v R, at [98] it was held:

“An incidental crime is within the scope of the agreement if the parties contemplate its commission as a possible incident of the execution of their agreement. Moreover, a party to a joint criminal enterprise who foresees, but does not agree to, the commission of the incidental crime in the course of carrying out the agreement and who, with that awareness, continues to participate in the enterprise is liable for the incidental offence (“extended joint criminal enterprise” liability)”: Ford v R [2020] NSWCCA 99, at [98].


When imposing an appropriate sentencing, a judicial officer will be guided by the sentencing guideline set out in R v Henry (1999) 46 NSWLR 346, at [162]. In R v Henry, it has been held that generally a full time custodial sentence of four to five years is suitable where the following circumstances are present:

  • Young offender with no or little criminal history,
  • Weapon like a knife, capable of killing or inflicting serious injury,
  • Limited degree of planning,
  • Limited, if any, actual violence but a real threat thereof,
  • Victim in a vulnerable position such as a shopkeeper or taxi driver,
  • Small amount taken,
  • Plea of guilty, the significance of which is limited by a strong Crown case.

Of course, the indicative sentence which has been set out in R v Henry may arguably increase or decrease if accompanied by other aggravating or mitigating factors.

Section 97(2) – “Aggravated offence”

The categorisation of armed robbery offences is dependent upon the actual use and categorisation of the perceived weapon. The concealment rather than use of the weapon may attract a lesser sentence or if, in the case of a firearm, the fact that the firearm is loaded and therefore available for immediate use or has been discharged would likely aggravate the offence and attract a more heinous sentence. It has been held that:

“robbery when armed with a dangerous weapon may be made out even if the offender does not threaten to use or does not actually use the weapon. The victim may submit to the theft by fear as a result of the knowledge that the offender is armed with a dangerous weapon”: R v Farrar (1983) 78 FLR 10, at [32] per Hoeben J.

Section 97(2) merely requires that the accused be in possession of a dangerous weapon for “immediate use” whilst the robbery has been committed: R v Farrar (1983) 78 FLR 10, at [32]. It does not require that the accused has actual used or threatened to use the dangerous weapon during the course of the armed robbery.

Pursuant to s 4(1) of the Crimes Act, a “dangerous weapon” includes:

  • A firearm, or an imitation firearm, within the meaning of the Firearms Act 1996, or
  • A prohibited weapon within the meaning of the Weapons Prohibition Act 1998, or
  • A spear gun.

Whilst the threatened or actual use of violence with a dangerous weapon during an armed robbery is not a necessary element to establish an offence under s 97(2). It was held in R v Way (2004) 60 NSWLR 169, at [106] that “the nature and extent of the threat can be taken into account through the application of s 21A(2)(b)-(c) of the Crimes (Sentencing Procedure) Act to assess the seriousness of the aggravated offence which has been committed and has the capability of increasing the objective seriousness of the offence so as to further aggravate the offence.

It is imperative that the accused engaged in an act, with the dangerous weapon, that could reasonably be construed to embody a threat of imminent violence or actually used violence in order for the judicial officer to apply s 21A(2)(b)-(c): Huynh v R [2006] NSWCCA 224, at [18]. The mere possession of the weapon is insufficient to warrant consideration as an aggravating factor under s 21A(2)(b)-(c): R v House [2005] NSWCCA 88.

Section 97(3) – Alternative verdict

“If upon trial of the accused for an offence under subsection (2), the jury is not satisfied that the accused is guilty of the offence charged [under s 97(2)], but is satisfied on the evidence that the accused is guilty of an offence under subsection (1), it may find the accused not guilty of the offence but guilty of the latter offence, and the accused is liable to punishment accordingly”: section 97(3).

Section 98 – Robbery with arms etc and wounding

An offence under section 98 is the most serious offence under Part 4, Division 2. An offence under s 98 requires the accused to:

  • Be armed with an offensive weapon, or instrument, or be in the company or another person (as set out in s 97(1)),
  • Have robbed, or assaulted with an intent to rob, any person (as set out in ss 94, 95, 96 and 97)), and
  • Have immediate before, or at the time of, or immediately after such robbery, have assaulted, wounded or inflicted grievous bodily harm onto the person.

The element which distinguishes an offence under s 98 from any other robbery offence under Part 4, Division 2 is the wounding or grievous bodily harm which the accused has inflicted onto the victim.


Wounding occurs where the accused has injured any person so as to causing the breaking of the skin: R v Shepard [2003] NSWCCA 351, at [31]. The wounding must be by the voluntary act of the accused before, during, or immediately after the robbery has been committed: Ryan v R (1967) 121 CLR 205, at [43].

“Grievous bodily harm”

Section 4(1) of the Crimes Act defines grievous bodily harm to involve:

  • The destruction (other than in the course of a medical procedure or a termination of a pregnancy in accordance with the Abortion Law Reform 2019) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and
  • Any permanent or serious disfigurement of the person, and
  • Any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).