Punishment for theft depends on the value of the property. Under section 223, theft of property worth less than $500 carries up to three months’ imprisonment, with no right to jury trial.
Theft valued between $500 and $1000 allows up to one year’s imprisonment, again without a jury trial. Property worth more than $1000, or theft of animals, can result in up to seven years’ imprisonment and does allow a jury trial.
The penalties vary with value, but the four elements remain constant. In practice, theft under $500 usually covers shoplifting. Even in these cases, however, the Crown must prove all four elements beyond reasonable doubt.
The law relating to theft illustrates two fundamentals of criminal law: the requirement of both a guilty act (actus reus) and a guilty mind (mens rea).
The actus reus of theft is the taking of property without consent. The mens rea combines several elements: knowledge that the owner did not consent, absence of a claim of right, and intent to permanently deprive. This fusion of conduct and intention underpins almost all criminal offences.
That structure may soon change. A recent Cabinet paper proposes removing shoplifting from the category of theft and creating a new “shoplifting infringement” offence. This would apply only to retail premises and would operate as a strict liability offence.
The penalty would be an infringement fee of $500 for goods assessed at under $500 in value, or $1000 if over $500. The Government’s rationale is to give police a quick, low-burden enforcement tool while allowing criminal charges for more serious offending.
The key departure is that liability would no longer require proof of all four elements. The offence would be established simply by evidence such as CCTV footage that goods were taken from a store. In other words, only the act of taking would need to be proven.
This makes the new offence one of strict liability. In such cases, the prosecution need not prove intent, knowledge, or negligence. Conviction requires only proof of the prohibited act.
The defendant may raise limited defences, such as reasonable excuse, but otherwise mental state is irrelevant.
Strict liability is common in regulatory areas – traffic offences, health and safety breaches, environmental and food standards, building codes – where policy requires ensuring compliance and protecting public welfare.
Courts generally presume offences require mens rea unless Parliament clearly indicates otherwise, but here the Cabinet paper expressly contemplates strict liability.
The Government also proposes adjusting theft penalties. For goods worth $2000 or less – raising the threshold by $1000 – the maximum penalty would be one year’s imprisonment, or two years if the theft was carried out in a threatening, insulting, or disorderly way. For property above $2000, the maximum remains seven years’ imprisonment.
The most significant issue is constitutional. Strict liability challenges the presumption of innocence. Section 25(c) of the New Zealand Bill of Rights Act 1990 guarantees that right, but the proposed regime reverses the burden of proof. Once police establish an unlawful taking, liability is presumed.
The defendant must then prove a defence. This is a profound shift from requiring the prosecution to prove all elements beyond reasonable doubt.
The proposal also risks inconsistency. Police could choose whether to issue an infringement notice or lay a theft charge, depending on their assessment of the seriousness of the conduct. Yet “seriousness” is undefined, leaving significant discretion with enforcement authorities.
A shoplifter may face either a strict liability infringement, with reversed burdens, or a theft charge subject to traditional principles of criminal law. That flexibility creates potential for arbitrary or discriminatory application.
At present, the reforms exist only in a Cabinet paper. No bill has yet been introduced. It remains to be seen how parliamentary drafts will reconcile the proposals with established criminal law principles.
But taken alongside other recent changes – the reintroduction of three-strikes sentencing, limits on judicial discretion in sentencing discounts, and restrictions on section 27 cultural reports – the proposals point to a wider trend of curtailing protections for defendants.
Every new criminal statute narrows liberty. By carving shoplifting out of theft and turning it into an infringement offence, the Government is not only creating administrative efficiency but also eroding the presumption of innocence, a cornerstone of criminal justice.
If shoplifting can be reframed in this way, what offences might be next? Why stop at shoplifting? Why not transform every offence that carries a maximum of three months imprisonment into a strict liability infringement offence? Simple possession of under 28 grams of cannabis could be decriminalised.
The danger is that the criminal law which sets the bottom line for behaviour in society becomes trivialised and core principles of proof and intent may be chipped away gradually, piece by piece.
David Harvey is a retired district court judge.
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