Updated: 3 days ago
We explain the elements, defences and penalties for the offence of Trespass.
The offence of Trespass is a summary offence and is frequently charged as an alternative offence to the more serious and indictable offence of burglary. This is because the two offence share common elements.
The offence of Trespass is prosecuted under 3 subsections of Section 9 (subsections (e), (f), and (g).
The elements of the offence are:
- A person enters any private or Scheduled public place; and
- enters without the express or implied authority of the owner or occupier; or
- refuses to leave a private place or Scheduled public place after being warned to leave; and
- does not have a legitimate purpose to enter or lawful purpose to remain.
The Penalties for Trespass
The maximum penalty for Trespass under Section 9 of the Summary Offences Act 1966 (Vic) is 25 penalty units or imprisonment for 6 months.
Defences to Trespass
The defences to trespass are varied and include:
- factual dispute (property not a private or a Scheduled public place)
- identity (someone entered, but not the accused)
- authority to enter (accused did enter but had either the express or implied permission to do so)
- mental impairment
Sentencing Outcomes for Trespass
The offence of Trespass is a summary offence, and for this reason is predominantly heard and determined in the Magistrates' Court of Victoria.
As a guide only to the sentencing outcomes available for this offence, reference may be had to the Sentencing Advisory Council statistics for the period 1 July 2016 - 30 June 2019:
- Imprisonment (39.2%)
- Community Correction Order (11.8%)
- Fine (11.8%)
- Adjourned undertaking/Discharge/Dismissal (35.3%)
See our case studies for a case involving Trespass.
Require Further Advice and or Representation?
If you are facing an allegation of Trespass, prompt legal advice is important. For an obligation free consultation call our office on 03 9668 7600 or provide further details via a case assessment.