Theft

Bonafide claim as defence

Ordinary rule that mens rea may exist even with an honest ignorance of law is sometimes not sufficient for theft. A claim of right in good faith, if reasonable, saves the act of taking from being theft and where such a plea is raised by the accused it is mainly a question of fact whether such belief exists or not. A bona fide claim of right exists, it can be a good defence to a prosecution for theft. An act does not amount to theft, unless there be not only no legal right but no appearance or colour of a legal right. By the expression “colour of a legal right” is meant not a false pretence but a fair pretence, not a complete absence of claim but a bona fide claim, however weak. (See Chandi Kumar Das Karmarkar v. Abanidhar Roy, 1965(1) CrLJ 496: AIR 1965 SC 585: 1964 All LJ 66: 1964 (1) Ker LR 123: 1964 MadLJ (Cri) 238)

Webbe vs. R. v [2001] EWCA Crim 1217 02 May 2001

Considerations for Sentence for theft or Burglaries

Deliberations for sentencing:

“Either with a record of offences of dishonesty, or who engages in sophisticated law breaking, will attract a custodial sentence. It is in relation to the length of that sentence that the aggravating and mitigating features which we have earlier identified will come into play, as will the personal mitigation of the offender, who may appropriately, in accordance with Ollerenshaw [1991] 1 Cr App RS 65, be dealt with by a somewhat shorter sentence than might, at first blush, otherwise have seemed appropriate.”
“in relation to more serious offences, there will be some for which a sentence within the range of 12 months to 4 years will be appropriate and there will be others for which a sentence of considerably more than 4 years, up to the maximum, may be appropriate. In this regard, the factors to be taken into consideration will include whether an offence is committed in the context of a business, whether the offender is acting as an organiser or distributor of the proceeds of crime and whether the offender has made himself available to other criminals as willing to handle the proceeds of thefts or burglaries.” (See:  Webbe & Ors, R. v [2001] EWCA Crim 1217 02 May 2001.)