We explain the elements, defences and penalties.
Table of Contents
Key Difference Between Trespass and Burglary
The offence of Burglary is an indictable offence and is prosecuted under Section 76 of the Crimes Act 1958 (Vic).
The key difference between the offence of trespass (section 9(1)(e) of the Summary Offences Act 1966 (Vic) and burglary is that whereas both are concerned with the unlawful entry onto private property, the prosecution must prove the additional element of entry with an intention to commit an offence (theft, criminal damage, or causing injury to another).
The prosecution must prove beyond reasonable doubt the following:
a person enters a building or part of a building.
as a trespasser.
with intent to steal; damage property; assault another
Penalties for Burglary
Under section 76 of the Crimes Act 1958 (Vic) a person found guilty of Burglary is liable to a penalty of imprisonment of 10 years (maximum).
The offence Burglary is an indictable offence. When additional aggravating elements are added (entry by more than one person & intention to assault or cause criminal damage) several charges may arise:
aggravated burglary (Section 77 of the Act)
home invasion (Section 77A)
aggravated home invasion (Section 77B)
Sentencing Outcomes for Burglary
A general principle of sentencing is that indictable offences attract a more severe penalty than is the case for summary offences.
This is because the criminality involved in the offending is more serious, and consequently, the maximum penalties for indictable offences are far greater than for summary offence.
The gravity of the offence of Burglary can vary greatly between cases. The gravity of an offence will encompass many things including:
whether residential or commercial premises.
whether committed at night or during the day.
the property value of the property damaged, or stolen
There are also additional features that aggravate an offence, and will result in the more serious charge of Aggravated burglary:
where the premises are occupied at the time of entry.
where a person commits a burglary whilst armed.
As a guide to the sentencing outcomes available when the case is heard in the Magistrates' Court, the Sentencing Advisory Council has published the top 4 sentencing outcomes for the period 2016-2019:
imprisonment – 56%
fine – 5.6%
adjourned undertaking/dismissal/discharge – 6.5%
Potential Defences
Because of the various elements the prosecution must prove, there are several potential defences that may be argued for this offence.
A defence may turn on whether the accused person was in fact entering the premises with the necessary intention. Or whether they had entered as a trespasser or had been given express or implied permission, to name but a few.
Conclusion
The offence of Burglary is one of the most serious under the Crimes Act 1958 (Vic).
It is a very prevalent offence, and for this reason the courts will frequently impose stern sentences to promote deterrence.