Attempted Aggravated Burglary – Wholly Suspended Sentence
Our client was a member of a recreational motorcycle club (rather than an ‘outlaw’ motorcycle club) whose adult daughter had been having long trouble with her ex-husband and the ex-husband’s new partner. The trouble centred around their daughter (our client’s granddaughter) and the trouble she had been getting into. Our client was drinking with friends at the club house when he learned that there had been a violent altercation between his daughter and her ex-husband. Our client’s daughter had been at a party searching for her daughter.
After learning of the violent altercation, our client attended at the house of the ex-husband to confront him and look for the granddaughter. Our client was accompanied by a number of other club-members and friends. The house was equipped with CCTV footage and showed a number of men smashing windows to the house and kicking at doors. Our client was charged with Aggravated burglary (on the basis that they had entered part of the house and intended to assault the occupants) and Criminal Damage. Aggravated burglary is a very serious offence and almost always carries a sentence of imprisonment.
Overall, the charges our client faced were:
- Aggravated Burglary
- Criminal Damage
- Threats to Kill
- Threats to Inflict Serious Injury
Josh Taaffe represented our client at a committal hearing in the Melbourne County Court where the ex-husband and his new partner were cross-examined. They had been hiding inside the house. It was established at the committal that they occupants had been doing everything possible to hide the fact that they were inside the house. No lights were on. Aggravated burglary requires that a person know or is reckless as to whether a person is present inside the premises. Our client defended the charges on the basis that:
- they had banged on the door and to all appearances, no one was present
- there was no intention to trespass – had he wanted to gain entry he could have climbed through any one of the broken windows
- there was no intention to assault anyone – only to damage property as punishment for the earlier violence
The matter was listed for trial and the Prosecution amended the major charge to one of Attempted aggravated burglary. Josh Taaffe prepared for trial and on the first day a number of pre-trial applications were made which strengthened the position of our client. The Court ruled that in an Attempted aggravated burglary, the Prosecution would have to prove actual knowledge that people were present inside the house rather than recklessness. The Court also ruled that reference could not be made to our client and the other men’s membership of the motorcycle club. The Prosecution asked for time to determine how the images of the club membership could be removed from the CCTV footage. While this took place, negotiations between the Prosecution and co-accused resulted in a number of men pleading guilty on the basis that the Prosecution would not ask for a sentence of imprisonment.
Our client instructed us to negotiate with the Prosecution and see if the same position would be available for our client. Josh Taaffe negotiated the same position from the Prosecution on an offer to plead guilty to the Attempted aggravated burglary. Our success on the pre-trial ruling allowed us to achieve this result as, initially, Prosecutors had demanded a harsher sentence for our client whom they blamed for the whole episode.
Following a guilty plea where our client’s personal circumstances, ill-health, and the history of the family troubles were explained to the Court, our client was sentenced to 22 months imprisonment. This sentence was wholly suspended for 22 months, meaning no time had to be served actually in prison unless the suspended sentence was breached.
As an instructing solicitor Josh has specialised in handling complex matters, such as murder and terrorism trials, including State and Commonwealth Supreme Court trials. Josh is an Accredited Criminal Law Specialist.
Visit Josh’s profile to read more about his background and experience.
DISCLAIMER: This is a real case study of an actual case from our files. Details pertaining to the client have been changed to protect their privacy. The sentence imposed and the charge have not been altered. These case studies are published to demonstrate real outcomes and give an indication of possible tariffs in Court. We do not guarantee a similar case on these charges will get the same result. Please note that we post results at our discretion, therefore while many case studies are average results, others are notable for their exceptional outcomes. PUBLISHED 25/02/2013