Updated: Jun 19
A previous article we published examined a related offence of trespass. What follows is an overview of Burglary, and Aggravated both of which feature the element of trespass.
The offence of Burglary is prosecuted under Section 76 of the Crimes Act 1958 (Vic).
Entry into a building or part of a building as a trespasser
Whether a structure is building and whether A entered a part of the building (e.g., porch etc) is a question of fact for the jury (B & S v Leathley  Crim LR 314; R v Cahill  2 VR 387).
The prosecution must prove that the accused entered the building or a part of the building intentionally, or recklessly, and without lawful right or authority (Barker v. R 1983 153 CLR 338).
At law recklessness means an accused believed that it was probable that she or he had no right to enter the building or part thereof (R v Verde  VSCA 16.
Intention to commit prescribed offences: theft, criminal damage, assault (punishable by 5 years imprisonment or more)
Burglary is synonymous with theft; however, the offence may also be alleged where the intention of the trespasser is to either assault an occupant, or to cause criminal damage.
The requisite intent must be proven at the time of entry (R v Verde  VSCA 16; R v Walkington  1 WLR 1169).
Additional elements where Aggravated burglary (Section 77 of the Crimes Act 1958 (Vic) is alleged.
Where all elements of burglary are established 2 additional elements describe the more serious offence of Aggravated burglary, namely:
- Where the offender is armed at the time of the burglary.
- Where a person is present at the time of the burglary AND the offender knew or was reckless as to their presence.
Armed upon entry
The prosecution must prove that at the time the accused committed the burglary, he or she had one of the following five articles with him or her:
i) A firearm;
ii) An imitation firearm;
iii) An offensive weapon;
iv) An explosive; or
v) An imitation explosive (Crimes Act 1958 s77(1A)).
What is critical is the accused’s purpose or intention at the time of the entry (R v Nguyen  1 VR 551; R v Munro  VSCA 94).
A person was present
Under this element, the prosecution must prove that at the time of the burglary, the accused either:
· Knew that a person was present in the building or unauthorised part of the building; or
· Was reckless as to whether a person was present in the building or unauthorised part of the building (Crimes Act 1958 s77(1)(b)).
An accused is reckless about whether a person is present in a location if s/he believes that a person is probably present (R v Verde  VSCA 16; R v Kalajdic  VSCA 160; R v Campbell  2 VR 585; R v Nuri  VR 641).
It is not sufficient that the accused knew that it was possible that a person was present in the building or unauthorised part of the building at the time of the burglary (See R v Verde  VSCA 16; R v Kalajdic  VSCA 160; R v Campbell  2 VR 585; R v Nuri  VR 641).
Under Section 76 of the Crimes Act 1958 (Vic), the maximum penalty for the offence of Burglary is 10 years imprisonment.
Under Section 77 of the Crimes Act 1958 (Vic), the maximum penalty for the offence of Aggravated burglary is 25 years imprisonment.
The defences available to Burglary and Aggravated burglary are varied. Possible defences may include:
- Factual dispute as to whether an offender was the person who entered a building or part of a building;
- Factual dispute as to whether the offender did or did not have lawful authority to enter
- Factual dispute as to whether entry occurred 'in a building' or 'part of a building'
- Factual dispute as whether an accused was 'armed' at the point of entry
- Whether an offender had the necessary intention to commit any of the prescribed offences under section 76;
- Whether an offender knew or acted recklessly in circumstances where it was alleged a person was present at the time of the burglary
- Sudden emergency
The sentencing outcome in any case of Burglary or Aggravated burglary will depend upon a synthesis of factors relevant to the offender, and the circumstances of the case.
The offence of Burglary is most often heard and finalized in the Magistrates' Court whereas the more serious offence of Aggravated burglary will be heard in the County Court, unless the offence relates to an intent to steal, and the property value is less than $100,000 (refer to Schedule 2 of the Crimes Act 1958 (Vic)).
Every case turns upon its particular facts and circumstances, and the criminality involved in an allegation of Burglary can vary greatly between cases. Some guidance can be obtained from statistics published by the Sentencing Advisory Council, for the period of 1 July 2016 - 30 June 2019.
Imprisonment - 56.7%
Community Correction Order - 27.2%
Fine - 5.6%
Other - 2.9%
Adjourned undertaking/discharge/dismissal - 6.5%
Aggravated burglary (Where intent to steal alleged)
Imprisonment - 68.3%
Community Correction Order - 19.3%
Fine - 1.4%
Other - 5.7%
Adjourned undertaking/discharge/dismissal - 2.6%
Imprisonment - 76.5%
Community Correction Order - 19.2%
Early advice and preparation important
The outcomes available for an offence of Burglary or Aggravated burglary will depend upon a variety of circumstances. It is important to seek advice from a criminal law specialist as early as possible so that possible defences can be discussed, or a plan to mitigate the consequences of pleading guilty. If you are facing any criminal allegation, including burglary call our office on 03 9668 7600 to arrange a consultation.