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Aggravated Burglary

– section 77 of the Crimes Act 1958

The offence of aggravated burglary is set out in section 77 of the Crimes Act 1958. There are two categories of aggravated burglary:

  1. Aggravated burglary while armed – section 77(1)(a)
  2. 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.

Jurisdictional Limits
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.

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 –

  1. At the time has with him or her any firearm or imitation firearm, any offensive weapon or any explosive or imitation explosive; or
  2. 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.
 
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.
 
Sentencing outcomes in the higher courts

From 1 July 2013 to 30 June 2018, a total of 932 charges (469 cases) of Aggravated Burglary were heard at the higher courts of Victoria. Majority resulted in a term of imprisonment (74%) although there were also a few that led to Community Correction Order (21.2%), Youth Justice Centre Order (3.6%), Wholly Suspended Sentence (0.3%), and Partially Suspended Sentence (0.1%).

Of the charges that led to imprisonment, majority were sentenced to a term that was between 3 and 4 years (18.6%). The longest term imposed was between 8 and 9 years (0.4%).

For the charges that led to Community Correction Order (CCO), majority were sentenced to a term between 2 and 3 years (34.3%). The longest CO term imposed was more than 5 years (0.5%).1

Please note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore all offences committed on or after 1 September 2013 will not have this available as a sentencing option.2

Sentencing outcomes in the Magistrates’ Court

In the Magistrates’ Court, there were 1,027 charges (776 cases) of Aggravated Burglary that were heard from 1 July 2016 to 30 June 2019. Majority of these cases also led to Imprisonment (68.6%) although many other sentences were imposed:

  • Community Correction Order (CCO) – 18.8%
  • Other – 5.9%
  • Youth Justice Centre Order – 2.8%
  • Adjourned Undertaking/Discharge/Dismissal – 2.5%
  • Fine – 1.1%
  • Wholly Suspended Sentence – 0.2%
Of the prison terms imposed, majority were between 6 and 12 months (18.3% of all charges that led to aggregate prison terms, 12.6% for non-aggregate). The longest term imposed was more than 24 months (7.0% for aggregate and 1.6% for non-aggregate).

For the cases that led to CCO, the majority were sentenced to a term between 12 and 18 months (48.7% of all non-aggregate CCO terms). The longest CCO term imposed was more than 24 months (20.7%, non-aggregate).3

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.4


[1] Sentencing Advisory Council. “SACStat Higher Courts – Crimes Act 1958 (Vic): s 77(1) – aggravated burglary.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_6231_77_1.html (accessed April 21, 2020).
[2] Sentencing Advisory Council. “Abolished Sentencing Orders.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders (accessed April 21, 2020).
[3] Sentencing Advisory Council. “SAC Statistics – Crimes Act 1958 (Vic): s 77(1) – aggravated burglary.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_77_1.html (accessed April 21, 2020).
[4] Sentencing Advisory Council. “Abolished Sentencing Orders.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders (accessed April 21, 2020).