Shoplifting

This section explains about your rights and the store’s powers if they think you’ve been shoplifting, including:

  • whether they can search your bag
  • whether they can stop you leaving the store
  • what they can do to recover compensation from you
  • how they can use trespass laws against you.

The section also explains what the criminal penalties are if you’re convicted of shoplifting: see “Facing criminal charges for shoplifting.

The shop’s powers and your rights

Does a shop have the right to search my bag?

Shop staff have no right to search your bag, even if they have a sign by the entrance or inside the store that says they can do this. If they ask to search your bag you can refuse. If they then use force to search your bag, they may be committing a criminal assault, and you may also have a civil claim against them for damages (compensation).

However, shops can require you to leave your bag outside the store before you come in. They can also require you to leave the shop if you’re inside.

Trespass Act 1980, s 3

Even if shop staff or security guards carry out a lawful “citizen’s arrest” for shoplifting and forcibly keep you in the shop until police arrive (see below), they still have no right to search you or your bag.

Can a store stop me from leaving if they think I’ve been shoplifting?

Not usually. Shop staff or security guards can forcibly prevent you leaving the shop only in two kinds of situations:

Crimes Act 1961, ss 35, 37, 39, 219, 223

  • Expensive items – if the things they suspect you of stealing are worth $1,000 or more (a higher-end laptop for example), or
  • Night time – if it’s between 9.00 pm and 6.00 am (when you’re in an all-night service station for example).

They also need to have “reasonable and probable grounds” for believing that you’ve stolen the items. A vague suspicion won’t be enough.

In these cases, the shop staff or guard would be carrying out what’s sometimes called a “citizen’s arrest”, and they can use reasonable force to hold you. However, they still don’t have the right to search you or your bag without your consent.

If neither of those situations justifying a citizen’s arrest apply, the shop can ask you to remain but you don’t have to do so – you can simply walk away. The shop can then call the police if they choose to. If you do agree to staying or going back to the shop, you can change your mind at any time. You also don’t have to give them any information.

If the shop staff or security guards forcibly hold you when they’re not entitled to – for example, by locking you in a room – they may have committed a criminal assault. You may also have a civil claim against them for damages for false imprisonment or civil assault or both.

Can the shop make me pay them a fee or fine on top of the cost of the goods?

Some stores send out “civil recovery notices” to shoplifters, saying they have to pay a flat fee within a set time – for example, a fee of $275 to be paid within 21 days. It’s doubtful whether these notices are legally enforceable in themselves, and you can refuse to pay them.

You don’t have any legal responsibility to pay the amount stated in the notice unless and until the store proves a civil claim against you for that amount in the Disputes Tribunal or the District Court. To do that they would need to show that in your particular case you caused the specific loss they’re claiming, as opposed to simply claiming a “blanket” fee from all shoplifters.

If a store does obtain a decision in their favour from the tribunal or the courts, they can then use the available measures to enforce the decision – such as getting a warrant from the court for your property to be seized so they can recover the amount of their claim.

Can a shop give me a trespass notice to prevent me entering?

Trespass Act 1980, ss 3, 4, 11

Yes. A shop is private property and the owner or manager can refuse to allow you to enter or can ask you to leave once you’re inside, so long as they don’t breach the anti-discrimination laws in doing this (see the chapter “Discrimination”). If you stay in the shop after you’ve been told to leave, you’re committing the criminal offence of trespass.

While you’re in the shop or after you’ve left, the shop can warn you to stay out of the shop, if they have good reason to think you’re likely to come back. The warning doesn’t have to be in writing. If you then go back into the shop within the next two years after the warning, this is a criminal offence. When the shop gives you a trespass warning, people sometimes call this “trespassing” you.

The courts can also give you a warning to stay out of the shop if you’re convicted of trespassing, and the same two-year ban will apply.

If you commit any of those trespass offences you can be fined up to $1,000 or jailed for up to three months.

Note: If you go back into the shop after getting a trespass warning and you shoplift again, you could also be charged with “burglary”, rather than just being charged with trespass and theft. This is because you no longer have a legal right to enter the shop (unlike other members of the public) and you’ve gone in with the intention of committing a crime: those are the key elements of the offence of “burglary”.

Facing criminal charges for shoplifting

What do the police have to prove for me to be convicted of shoplifting?

Crimes Act 1961, s 219

If a shop accuses you of shoplifting, you may face a criminal charge of “theft or stealing”. There are three elements to this:

  • first, that you took the items
  • second, that you intended to deprive the owner of them permanently, and
  • third, that you did this dishonestly and without any “claim of right” – that is, without a belief that you had a legal right to the things.

If you plead not guilty, the police will have to prove the case against you beyond a reasonable doubt.

For more about a defence of “claim of right”, see below, “Possible defences to a shoplifting charge”.

Shoplifting while you’re trespassing in the store

Crimes Act 1961, s 231

Case: [2014] NZHC 3002

If a store has given you a trespass warning and you go back in and shoplift any time in the next two years, you could be charged with “burglary”, which carries much more serious penalties (up to 10 years’ jail) than a basic shoplifting (theft) charge. This is because you’re going in to a place where you now have no legal right to go and doing this with the intention of committing a crime – this legally amounts to “burglary”.

However, particularly if you take only small-value items, the judge will treat this as the least serious type of burglary, because you’ve gone into a shop and not someone’s home, and because there was (presumably) no violence or forced entry.

If you’re not charged with burglary, you can be charged instead with theft plus the criminal offence of trespass, which carries a maximum penalty of a $1,000 fine or three months’ jail.

The court process in a shoplifting case

Crimes Act 1961, s 223; Criminal Procedure Act 2011, ss 6, 72, 73

If the value of the goods you’re accused of shoplifting is under $1,000, you’ll be dealt with by a District Court judge.

If they’re worth more than $1,000 (a medium to high-end laptop for example), and you plead not guilty, you’ll have the option of a jury trial in the District Court or before a District Court judge. You’ll also have the option of a jury trial if the police charge you with burglary because you were trespassing in the store at the time.

Possible defences to shoplifting charges

“Claim of right”: Believing you have a right to the goods

Crimes Act 1961, s 219

You won’t be guilty of shoplifting if when you took the things you genuinely thought you had a legal right to them, called a “claim of right” – for example, if you genuinely believed the shop owed you money for something.

Your belief doesn’t have to be a reasonable one – in other words, this can still be a good defence to the charge even if a reasonable person in the same situation wouldn’t have thought you had a right to the things. This could potentially include a mistaken belief resulting from a mental illness.

Case: [2008] NZSC 3

On the other hand, if your belief isn’t reasonable, the judge can take this into account when deciding whether or not you genuinely had this belief.

To put up a “claim of right” defence, you only have to point to some evidence that raises this as a possible defence. It’s then the prosecution’s job to prove beyond a reasonable doubt that you didn’t have a genuine belief. It’s not your responsibility to prove that you had this belief.

Case: (1984) 1 CRNZ 576 (HC)

Example: A defendant pleaded guilty in the District Court to taking two bags of kitty litter from a vet, worth around $10. She’d done it because she was unhappy with the treatment her pet had received, and believed the vet should repay her the $130 bill she’d paid, which the vet had refused to do. She appealed to the High Court because she hadn’t realised she might have a defence to the charge. The appeal judge decided there was evidence that might have led to a successful “claim of right” defence if she’d pleaded not guilty, and so cancelled (“quashed”) the conviction.

Case: [2015] NZHC 1128

Criminal penalties for shoplifting

Crimes Act 1961, s 219

This section explains the kinds of action the police and the courts are likely to take against you for shoplifting offences, particularly for a first or second offence.

It also tells you the maximum penalties available under the law. However, only people with a very long history of shoplifting are likely to get anything near the maximum sentences.

Note: Some stores send out “civil recovery notices” to shoplifters, saying they have to pay a flat fee within a set time – for example, a fee of $275 to be paid within 21 days. It’s doubtful whether these notices are legally enforceable in themselves, and you can refuse to pay them. For more details see above, “Can the shop make me pay them a fee or fine on top of the cost of the goods?”.

What’s likely to happen the first time I’m charged with shoplifting?

If it’s your first offence, the police will often simply give you a formal warning without charging you – they call these “pre-charge warnings”.

For a second offence, you’ll probably be charged, but you may then qualify for the police “diversion” scheme. To get diversion you’ll have admit the offence, but you’ll be kept out of the court system and won’t get a criminal record (see the chapter “The criminal courts”, under “Alternatives to going to court: Diversion and restorative justice”).

If you can’t get diversion and are convicted in court, this first shoplifting conviction is likely to be dealt with by a fine or a community-based sentence (like community work). Alternatively, the judge may order you to “come up for sentence if called upon” during a set time, usually six months or nine months. This means you’re released but must be on good behaviour during that time, otherwise you have to go back to court to be sentenced for the shoplifting offence plus whatever penalty you might get for the latest offence (this is sometimes called a “suspended” sentence or a “good behaviour bond”).

If you’re convicted you’ll also have to pay court costs on top of your sentence.

You may also have to pay “reparation” (compensation) to the store if you’ve used or damaged the items so that they can’t be sold. But if the store has been able to get the items back from you still in a saleable condition, you won’t have to pay reparation. Meatpacks are an item often stolen from supermarkets, and the shoplifter is usually ordered to pay reparation in these cases.

If you’ve already got shoplifting convictions you’ll probably face stiffer penalties, depending on the value of the goods shoplifted – including longer community-based sentences, or a jail term. For more information about the different types of sentences, see the chapter “The criminal courts”, under “Sentencing”.

Note: If you’re facing your first shoplifting conviction, you might consider applying in writing to the judge for a discharge without conviction, so that you don’t get a criminal record. However, this won’t be easy to get.

What are the maximum penalties for shoplifting?

Crimes Act 1961, s 223

The maximum penalty for shoplifting (“theft”) depends on the value of the goods that were stolen:

  • If their value is under $500, the maximum penalty is three months’ jail.
  • If it’s between $500 and $1,000, the maximum is one year’s jail.
  • If it’s more than $1,000, the maximum is seven years’ jail.

Young people and shoplifting

Crimes Act 1961, s 223

If you’re under 14 you can’t be charged with theft, and instead you’ll be dealt with under the child protection laws rather than by the criminal justice system. The Ministry for Vulnerable Children (which has replaced Child, Youth and Family) may become involved. (See the chapter “Dealing with the Ministry for Vulnerable Children / Oranga Tamariki”.)

If you’re 14, 15 or 16, you can be charged with theft, but usually an alternative such as a police warning or caution will be used instead. If you are charged, you’ll be dealt with by a family group conference or by the Youth Court, or both (see the chapter “Youth justice”).

If you’re 17 or older, you’ll be dealt with by the adult court system.

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