The offence of aggravated burglary is set out in section 77 of the Crimes Act 1958. There are two categories of aggravated burglary:
- Aggravated burglary while armed – section 77(1)(a)
- Aggravated burglary where a person was present – section 77(1)(b).
A common example of this charge is a ‘run-through’ where police allege that an accused person has broken into a house either to rob the people inside the house or to assault them. These cases are often contested on the basis of identification or that the accused person entered the property with the consent of the owners or people inside.
Aggravated burglary is an indictable offence, which means that it is triable by a judge and jury in the County or Supreme Court.
However, this offence may also be heard summarily in the Magistrates’ Court if:
- The offence involves an intent to steal property the value of which does not exceed $100,000; and
- The Magistrate considers it appropriate to be dealt with summarily; and
- The accused consents to having the charge determined summarily.
The seriousness of the alleged aggravated burglary is the key factor that will determine whether the court considers it appropriate for the matter to be heard in the Magistrates’ Court. If the accused is sentenced in the Magistrates’ Court, the maximum term of imprisonment that may be imposed is 2 years. If the case involves multiple charges, the longest total effective sentence that may be imposed by the Magistrates’ Court is 5 years.
More serious examples of aggravated burglary will be heard in the County or Supreme Courts. In the higher jurisdictions, the offence carries a maximum penalty of Level 2 (25 years) imprisonment. This is the second highest level of maximum penalty available in Victoria after life imprisonment.
Ultimately, it is the individual circumstances surrounding the charge that will determine which court is the most appropriate.
Elements of the offence of Aggravated Burglary
Section 77 defines the elements that the prosecution must prove beyond reasonable doubt to satisfy a charge of aggravated burglary:
A person is guilty of an aggravated burglary if he or she commits a burglary and –
- At the time has with him or her any firearm or imitation firearm, any offensive weapon or any explosive or imitation explosive; or
- At the time of entering the building or the part of the building a person was then present in the building or part of the building and he or she knew that a person was then so present or was reckless as to whether or not a person was then so present.
Firstly, conduct capable of amounting to a charge of burglary must be present. The prosecution must prove that at the time of entry the accused entered the building (or part of the building) as a trespasser, that being without right or authority to enter. For instance, a person may have limited authority to enter a building at a particular time or for a particular purpose. An example of this may be entry into a place of work between the hours of 9am – 5pm (and what would be reasonable outside that scope to perform work-related tasks) or entry into certain parts of a building but prohibited from other parts. In such cases, any entry outside those terms may amount to a trespass.
What must accompany the physical element of trespass is the requisite intention to steal, assault a person or damage property at the time of entry. Intention formed after the accused entered the building will not satisfy this element. The ‘time’ the intention was formed depends on the way the evidence against the accused is framed. If it is alleged that the accused entered the house as a trespasser, it will be necessary for the prosecution to prove that accused had the requisite intention when he or she initially entered the house. If it is alleged that the accused entered a particular room in the house as a trespasser, it will be necessary for the prosecution to prove that the accused had the requisite intention when he or she entered the room identified.
A person doesn’t need to successfully carry out the offence involving theft, assault or property damage to satisfy this element, as long as it was their intention to do so at the time of entering the building.
Aggravated burglary while armed
For the purpose of this section, the prosecution must prove that the accused had in their possession any of the articles listed below for the purpose of the burglary:
- a firearm;
- an imitation firearm (means anything which has the appearance of being a firearm, whether capable of being discharged or not);
- an offensive weapon;
- an explosive; or
- an imitation explosive.
There is a requirement that the accused possessed the article for the purpose of the burglary. A person will be deemed to have carried the article for the purpose of the burglary if they intended to use it for the burglary, even if it was not actually used. On the other hand, a person will not be deemed to possess an article for the purpose of the burglary if they possessed it in such a way that it cannot be used. For instance, if the item is concealed on the person in a sealed package.
This element will only be met if the accused knew that he or she had the article with him or her, or that the article was available for use.
Aggravated burglary when a person was present
For the purpose of this section, the prosecution must prove at the time of the burglary the accused either:
- knew that a person was present in the building; or
- was reckless as to whether or not a person was present in the building.
The threshold to establish recklessness is quite high in the sense that the accused will not have acted recklessly simply because he or she ought to have known, or thought it was possible, that a person is present in the building.
An accused is reckless to whether or not a person is present in a location if he or she believes that a person is probably present. The accused must have turned his or her mind to the likelihood. For instance, if the accused saw a light on or came across an unlocked door at the building which is usually unoccupied at 11pm, turned their mind to the probability that someone was present and went ahead and trespassed regardless of that fact, there is a strong likelihood that this element will be made out.
Often the defence to aggravated burglary is that there is a factual dispute about what happened or an assertion that the alleged victim let the accused into the premises by consent. There are also a lot of cases run on the basis of witnesses wrongly identifying who was involved in the alleged crime.
Aside from general defences which may apply such as mistaken identity, the offence of aggravated burglary can raise complex legal issues in relation to the intention of the accused. Lack of intent can be a defence to this charge if the prosecution do not provide adequate evidence that the accused had the requisite intention. That is that at the time of entry into the premises to steal, assault or damage or the intention to use a weapon carried for the purpose of the burglary. For both of these scenarios, intention must be present at the time of entry.
Sentencing for Aggravated Burglary
Aggravated burglary is considered a very serious offence and will usually attract an immediate and potentially substantial term of imprisonment. The maximum penalty of 25 years imprisonment is higher than the maximum penalty that can be imposed for manslaughter, and is equal with offences such as attempted murder and rape.
It is important to seek advice from an experienced criminal defence lawyer as soon as possible, who will be able to advise on current sentencing practices and the likely sentencing outcome, taking into account all of the particular circumstances of your case.
Sentencing outcomes in the Magistrates’ Court
The Sentencing Advisory Council has released sentencing statistics for the sentencing of aggravated burglaries in the Magistrates’ Court between July 2011 to June 2014. Over the three year period, 617 cases were before the Court. 56.1% of people sentenced received a period of imprisonment, 10.1% received a wholly suspended period of imprisonment, 5.7% received a partially suspended sentence, 2.1% received a fine, and about 21% received some form of community based order.
The most common length of imprisonment imposed was between 12 and 18 months with 35.5% of persons imprisoned sentenced within that range.
As of 16 January 2012, the Magistrates’ Court can no longer impose community based orders, intensive corrections orders, combined custody and treatment orders or home detention orders. Likewise, for offences committed on or after 1 September 2014, the Court can no longer impose a suspended sentence.
Sentencing outcomes in the higher courts
The Sentencing Advisory Council has released sentencing statistics for the sentencing of aggravated burglaries in the County and Supreme Court’s between July 2008 to June 2013. Over the four year period, 769 cases were heard before the higher courts. 52.5% of people sentenced received a period of imprisonment, 29.6% received a wholly suspended period of imprisonment, 7.7% received a partially suspended sentence, 0.5% received a fine, and about 9% received some form of community based order.
The median length of imprisonment was 2.17 years. The most common length of imprisonment imposed was between 2 and 3 years with 34.8% of persons imprisoned sentenced within that range.
Please note, suspended sentences were removed in the higher courts for serious and significant offences committed on or after 1 May 2011. Soon after, suspended sentences were removed as a sentencing option in the higher courts for all offences committed on or after 1 September 2013.
To view sentencing decisions by Victorian County Courts for the charge of Aggravated Burglary, visit this page.