Article by Mark Williams, Solicitor, Potts Lawyers – 24 January 2011.
With the devastating floods Queensland has recently endured, many people have lost their homes, personal property, valuables and in some cases, their lives. Looting is a criminal offence of much interest at this time.
There is obvious damage to property and homes, the loss of infrastructure and the economic loss to local communities. Many businesses have suffered a loss in revenue which in turn causes a loss of jobs. The personal and economic costs are high.
The Federal Government has provided some interim financial relief. Insurance coverage is low.
The extreme personal and economic demands placed on the community by events such as the Brisbane flood bring out the very best in most people. Sadly, there remains a small percentage of the community who unfortunately take advantage of others in these desperate times. Though looting is relatively rare, it is a high profile offence.
Looting is essentially the offence of stealing but with the aggravating feature that it is committed during a natural disaster, civil unrest or industrial dispute.
Section 391 of Queensland’s Criminal Code defines the general offence of stealing.
Pursuant to Section 398, the offence of stealing during a natural disaster attracts a maximum penalty of 10 year’s imprisonment.
Relevant extracts from the Criminal Code are as follows:
391 Definition of stealing
- A person who fraudulently takes anything capable of being stolen, or fraudulently converts to the person’s own use or to the use of any other person anything capable of being stolen, is said to steal that thing.
- A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if the person does so with any of the following intents, that is to say–
(a) an intent to permanently deprive the owner of the thing of it;
(b) an intent to permanently deprive any person who has any special property in the thing of such property;
(c) an intent to use the thing as a pledge or security;
(d) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;
(e) an intent to deal with it in such a manner that it can not be returned in the condition in which it was at the time of the taking or conversion;
(f) in the case of money–an intent to use it at the will of the person who takes or converts it, although the person may intend to afterwards repay the amount to the owner.
- The taking or conversion may be fraudulent, although it is effected without secrecy or attempt at concealment.
- In the case of conversion, it is immaterial whether the thing converted is taken for the purpose of conversion, or whether it is at the time of the conversion in the possession of the person who converts it. (4A) It is also immaterial that the person who converts the property is the holder of a power of attorney for the disposition of it, or is otherwise authorised to dispose of the property.
- When a thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or converting the thing does not know who is the owner, and believes, on reasonable grounds, that the owner can not be discovered.
- The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.
- In this section — owner includes the owner, any part owner, or any person having possession or control of, or a special property in, the thing in question.
398 Punishment of stealing
(a) the offence is committed during a natural disaster, civil unrest or an industrial dispute; or
the offender is liable to imprisonment for 10 years.
The Disaster Management Act 2003 defines a ‘disaster’ as “a serious disruption in a community…where there is loss of human life and widespread or severe loss and damage to property and the environment” (section 13).
The offence of looting carries a maximum penalty of imprisonment for 10 years. It is notable that for looting the maximum penalty is doubled from the 5 year maximum that relates to the general offence of stealing.
To be convicted of the offence of looting, the prosecution must prove beyond a reasonable doubt that:
- The property (whatever it is) is a thing capable of being stolen, that is, whether it is moveable or capable of being made moveable, even if it is made moveable in order to steal it; and
- The property is owned by a person; and
- No consent was given by the owner to take the property;
- *Note – There must have been some actual moving or dealing with the property by some physical act in order to ‘take’ the property; and
- There must have been some fraudulent intent, for example to permanently deprive the owner of the thing taken; and
- The offence is committed during a natural disaster, civil unrest or an industrial dispute.
At this point, it is vital to draw the distinction between lost property and abandoned property. Generally, property that has been abandoned would not form the basis of a looting charge as there is no owner, or no complainant. However, lost property is not necessarily abandoned property.
One way the courts may determine whether the property is lost or abandoned is to look at the circumstances in totality, for example:
- what attempts were made by the owner to determine the property’s whereabouts?
- what was the value of the property?
- how was the property lost, from where and for how long has it been lost?
See comments by Ipp J in Keane v Carter (1994) 12 WAR 20.
In circumstances where there is no owner, but the prosecution are of the belief that there is evidence to suggest the property has been stolen, the prosecution may prefer a charge of stealing, with the owner described as “persons unknown”. In rare cases, this might be sustained where, for example, there were admissions by the defendant.
The offence of ‘stealing by finding’ is to be found in the provisions of section 398(5), placing a positive onus on a person who ‘finds’ property, to hand it into the authorities. If the right steps are taken, then a person should not be charged with stealing.
Defences by persons that property has been abandoned are not straightforward to sustain in Queensland. Similarly, defences based on salvage rights pursuant to the Law of the Sea are difficult to sustain.
It is the ‘belief on reasonable grounds that no owner can be discovered’ part of Section 398(5) which potentially causes difficulties for persons charged with looting.
The finder must not be aware of the owner. There must also be a reasonable belief that the owner cannot be found. Reasonable attempts should be made to locate the owner. Such actions are fraught with risk of prosecution.
Persons charged with the offence of looting have the myriad of potential defences and excuses available to them under the Criminal Code, including an honest claim of right (Criminal Code section 22(2)) and mistake of fact (Criminal Code section 24):
- Honest Claim of Right – section 22(2) Criminal Code
“…a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud.”
- Mistake of Fact – section 24 Criminal Code
“A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.”
The Queensland Police Service has already made arrests and charged several people for looting in flood-affected areas. In fact, it seems the situation is of such a concern that a 200-officer task squad has been set up to control access to flooded areas so as to prevent looting, code-named Operation Safeguard.
Last week, three men were charged with stealing by looting after they were allegedly caught taking boats which had once been moored but were drifting unrestrained down the swollen Brisbane River.
When determining penalty, the Courts must, in accordance with the principles of sentencing, take into account not only the deterrence to the individual, but the general deterrence to the community. One might expect penalties to be harsh unless special circumstances were shown.
Disclaimer: This article is a summary of the law relating to the offence of looting in Queensland as at 24 January 2011. It expresses the general views of Potts Lawyers. It should not under any circumstances be relied upon by any person seeking advice on their rights or as a guide to what may constitute legal or illegal activities. Potts Lawyers makes no representation as to the accuracy of this article and anyone requiring advice should contact Potts Lawyers or another lawyer to obtain advice relevant to their particular circumstances.