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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 into 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; Case: [2008] NZSC 3

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.

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.

Case: (1984) 1 CRNZ 576 (HC)

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.

Example: “Claim of right” defence

Case: [2015] NZHC 1128

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 that 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.

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 to 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 “Ways to stay out of 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. Meat packs 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. Oranga Tamariki / Ministry for Children (which has replaced Child, Youth and Family) may become involved. See the chapter “Dealing with Oranga Tamariki / Ministry for Children”.

If you’re 14, 15, 16 or 17, you can be charged with theft. But usually the police will just give you a warning or caution instead. If you are charged, you’ll be dealt with by a family group conference or by the Youth Court, or both (for information about the youth justice system, go to www.youthlaw.co.nz). If you’re 18 or older, you’ll be dealt with by the adult court system.

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How to find the cases we’ve cited in this chapter

This chapter cites a number of New Zealand court decisions as legal authority for the law as we’ve stated it. If you need to look up these cases, you can look at the references for each section and search for them either online or in a law library.

When we give the case citation, we give just the unique case reference – for example, “[2012] NZHC 15”. We haven’t included the case name (which is usually in a format like “Police v Douglas” or “R v Myers”).

You’ll be able to read most of these cases on the government website Judicial Decisions Online, at forms.justice.govt.nz/jdo/Search.jsp. The case will be on that site if the citation we’ve given includes either “NZHC” (for High Court), or “NZCA” (for Court of Appeal), or “NZSC” (for Supreme Court). You’ll need to search for the case on that site by inserting the citation (for example, “[2015] NZSC 135”) in the “Neutral Citation” search field.

Cases that have “NZLR” in the citation (for “New Zealand Law Reports”) usually won’t be available online, but they are available in hard copy in some larger city public libraries, published in orange-brown volumes. For the occasional case that we’ve cited from other report series (like CRNZ, for “Criminal Reports of New Zealand”), you’d need to go to a specialist law library at a university or local Law.

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