Aggravated Home Invasion

Police Interview

Police will usually want to interview you, often shortly after arrest and while you are still in custody. Anything you say can be used against you.

These charges nearly always involve several accused people. What you tell police can affect your co-accused, and what they tell police can affect you. Police know this and will often interview everyone separately and quickly. Do not take part in an interview before speaking to a criminal lawyer. We can attend the police station with you.

Bail

Aggravated Home Invasion is a Schedule 1 offence under the Bail Act 1977. That means bail must be refused unless you satisfy the bail decision maker that exceptional circumstances exist justifying a grant of bail. The burden sits with you, and it is the highest threshold in Victorian bail law. If exceptional circumstances are established, the court then considers separately whether you are an unacceptable risk.

Most people charged with this offence are remanded. A bail application needs careful preparation, and you generally get one real attempt.

Pleading Not Guilty

Aggravated home invasion has more elements than almost any comparable charge, and every one must be proved beyond reasonable doubt. That gives a defence team several places to look.

If you instruct us to fight the charge, we will go through the brief and consider matters such as:

• Whether you can be identified as one of the people who entered.
• Whether you entered as a trespasser, or had permission or another right to be there.
• What you intended at the moment of entry, as distinct from what happened afterwards.
• Whether three or more people actually entered.
• Whether you had a weapon on you when you entered, rather than picking something up once inside.
• What you knew or thought about whether anybody was home.
• Whether a person other than your co-accused was in fact present while you were there.

Our firm has handled hundreds of matters in the County and Supreme Courts, so serious matters have experienced lawyers working on them from an early stage.

Pleading Guilty

Do not plead guilty to this charge without advice. Aggravated Home Invasion is a category 1 offence under the Sentencing Act 1991, so section 5(2G) requires a court to impose a custodial order. Section 10AC goes further and requires a term of imprisonment with a non-parole period of at least three years, unless the court finds a special reason under section 10A.

That does not mean nothing can be done. It means the work shifts. We focus on negotiating the summary of offending and your role compared with your co-accused. We will place emphasis on whether the facts genuinely support this charge or whether a plea to home invasion or aggravated burglary is available, and on assembling the material a court will want to see.

That includes character references, evidence of your background, and evidence of any treatment or courses completed. Where a special reason under section 10A may be open, expert reports may be needed. On a charge with a mandatory minimum, the difference between a well prepared plea and a poor one can be measured in years in custody.

Sentencing

Sentencing outcomes in the higher courts of Victoria

Source: Sentencing Advisory Council of Victoria (SACStat), Crimes Act 1958 (Vic) s 77B(1) — 84 charges across 73 cases, higher courts, 1 July 2019 to 30 June 2024.

These figures show that a custodial sentence is close to universal for aggravated home invasion. Almost every charge resulted in either imprisonment or a youth justice centre order, and community correction orders are rare. The sentence will depend on factors such as your role in the offending, the level of planning, the weapon involved, whether anyone was hurt, your age and your personal circumstances.

Which court will the case be heard in?

Aggravated Home Invasion is a strictly indictable offence. It does not appear in Schedule 2 of the Criminal Procedure Act 2009, which lists the indictable offences a magistrate can deal with summarily, and its maximum penalty is far beyond the Magistrates’ Court’s sentencing power. It will be heard in the County Court or the Supreme Court, and cannot be heard in the Magistrates’ Court.

If the accused is a child, recent Victorian reforms have changed which court deals with serious youth charges, and aggravated home invasion is among the offences affected. Ask us how the current rules apply to your charge.

Examples of Aggravated Home Invasion

• Three people push their way into a unit carrying a metal bar, intending to assault the occupant over a debt. They have called ahead and know he is home.
• Three people enter a motel room intending to smash the room and its contents. One is carrying something that looks like a handgun. A person is asleep on the bed.

What is the legal definition of Aggravated Home Invasion?

Under section 77B(1) of the Crimes Act 1958, a person commits an aggravated home invasion if the person enters a home as a trespasser with intent to steal anything in the home, or to commit an offence punishable by imprisonment for five years or more involving an assault to a person in the home or damage to the home or property in it. The person must enter in company with two or more other persons. At the time of entry the person must have a firearm, imitation firearm, offensive weapon, explosive or imitation explosive with them, and must know or be reckless as to whether there is or will be another person, other than a co-offender, present in the home while the person is there. Finally, another person other than a co-offender must in fact be present at some time while the person is there.

Were three of you inside, were you armed when you walked in, and did you know anyone was home?

Legislation

The legislation for this offence can be found in section 77B of the Crimes Act 1958.

Elements of the offence

The prosecution must prove each of the following beyond reasonable doubt.

1. The accused entered a home
2. The accused entered as a trespasser
3. The accused had the required intention at the time of entry
4. The accused entered in company with two or more other persons
5. The accused was armed at the time of entry
6. The accused knew, or was reckless about, another person being present
7. Another person was in fact present

Defences

Possible defences include:

1. mistaken identity
2. a factual dispute about what happened
3. that you were not a trespasser
4. that you did not have the necessary intention at the time you entered
5. that fewer than three people entered
6. that you were not carrying a weapon when you entered
7. that you neither knew nor were reckless about anybody being inside
8. that nobody other than your co-accused was in fact present
9. Duress
10. Running through all of it is the requirement that the prosecution prove every element beyond reasonable doubt.

Section 77C is also important. If a jury is not satisfied that aggravated home invasion is made out but is satisfied about home invasion under section 77A, it may acquit on the aggravated charge and find you guilty of the lesser one instead. That matters for how a defence is run, because an argument that defeats one element may leave a lesser charge standing.

You should ring us and discuss your case if you have been charged. Whether to plead guilty or not guilty has major implications for you, and the decision should be made after proper discussion with a criminal lawyer.

Questions in cases like this

• Did you enter the home, and were you a trespasser when you entered?
• How many of you went inside?
• Were you carrying a weapon at the moment you entered, or did you pick something up later?
• What did you know or believe about whether anybody was home?

Maximum penalty for section 77B of the Crimes Act 1958

Aggravated Home Invasion (s77B of the Crimes Act 1958) is a strictly indictable offence carrying level 1 imprisonment, which is life imprisonment. The maximum was increased from 25 years to life by Act No. 54 of 2025.

It is a category 1 offence under the Sentencing Act 1991, so section 5(2G) requires the court to impose a custodial order and prevents it from imposing imprisonment combined with a community correction order.

Section 10AC also requires a term of imprisonment with a non-parole period of at least three years, unless the court finds a special reason under section 10A. A special reason may be found where the offender has assisted or undertaken to assist law enforcement authorities, where impaired mental functioning of the kind described in section 10A is proved, where the court proposes to make a treatment order, or where there are substantial and compelling circumstances that are exceptional and rare. That last category is deliberately narrow, and the Act directs courts to give greater weight to deterrence and denunciation than to your personal circumstances. Section 10AC(2) provides that the minimum does not apply to an offender who was under 18 at the time of the offence.

Other important resources

https://www.sacstat.vic.gov.au/hc-vic/aggravated-home-invasion-6231-77b-1-hc.html