Burglary

Burglary

Burglary is found in section 76 of the Crimes Act 1958 in Victoria. It is a criminal offence that is committed by a person who entered a building, or part of a building, as a trespasser. The police must prove that the person intended to steal property from the building or to commit a serious offence.

Have you been accused of Burglary? It is in your interest to contact our firm to speak with one of our experienced criminal defence lawyers who can answer your important questions.

Equipped for stealing
Police Interview
You must prioritise speaking with one of our lawyers before you participate in a police interview. Anything you say to police can compromise your defence in court later on.

Burglary generally involves offenders breaking into either residential or commercial premises to steal or damage property. Burglary is normally discovered after the fact so police try to piece together the sequence of events to identify the offender. By admitting to being present at a particular location, you might help the Police to prove a charge against you even if you did not commit the offence. You must speak to a lawyer before you are interviewed so you do not disadvantage your case.

You may go to the interview wondering:

  • Should I answer some questions and not answer others?
  • Will the police leave me alone if I tell them my side of the story?
Get legal advice before the interview as it is an important part of the prosecution case.

Pleading Not Guilty
Burglary charges often rely on identification in the form of CCTV footage, witness statements and/or forensics. It is crucial that you engage one of our lawyers at the earliest possible stage to develop a strategy and dissect the prosecution case to determine the strength of the evidence against you.

Your lawyer will explain how best to challenge the prosecution case through cross-examination of the investigating police officer to show that the investigation was inadequate.

Our lawyers have dedicated their careers to criminal defence work and have achieved many not guilty verdicts for clients charged with Burglary.

Pleading Guilty
In presenting a plea of guilty on your behalf, your lawyer will explain to the Court your personal circumstances as well as the circumstances surrounding your offending. It may be a situation in which you felt desperate financially so seized an opportunity to take items from a residence/commercial property that did not belong to you. Each case will be different, so it is crucial that you speak with an expert in defence so that you achieve the best possible outcome at Court.

Sentencing
Sentencing in the higher courts of Victoria Sentencing Statistics Pie Chart for Burglary in the Higher Courts Sentencing in the Magistrates’ Courts of Victoria Sentencing Statistics Pie Chart for Burglary in the Magistrates' Courts
A burglary charge is generally heard summarily in the Magistrates’ Court, but can also be heard in the County Court.
 
What is the legal definition of Burglary?
Burglary is defined as entering or remaining in a building without consent of the occupier with the intention of committing an offence.

“Can the Prosecution Prove that you did not have permission to be in the building?”
Examples of Burglary
  • Entering someone’s home as a trespasser to commit a theft
  • Entering someone’s home as a trespasser to commit criminal dame
  • Entering a factory as a trespasser to commit an offence
Legislation
The law for Burglary can be found on section 76 of the Crimes Act 1958.

Elements the prosecution must prove
The prosecution must prove the following elements beyond reasonable doubt to make out the charg of burglary:

  1. The accused entered or remained in the building; and
  2. The accused was a trespasser; and
  3. The accused intended on committing an offence.

People are regularly charged with burglary when they are not guilty of the offence. Police commonly charge people with burglary when they are found in possession of items police believe were recently stolen from house or commercial premises. In such a case can the prosecution prove all three elements above? Were the circumstances really consistent with the meaning of burglary? Or is a more appropriate charge a lesser offence of handle stolen goods or possession of property reasonably suspected of being the proceeds of crime?

The defences available to an accused person will depend on the particular circumstances of each matter. An accused person should seek advice from a specialist criminal lawyer to discuss any defences which may apply in their matter.

Many matters involve a factual dispute as to what happened. Is the witness who said they saw the accused person enter the property mistaken? Is the witness lying?

Often the defence to this charge can be that there is a factual dispute about what happened or an assertion that the alleged victim let you into the premises.

Aside from general defences which may apply such as mistaken identity, the offence of 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 at the time of entry into the premises to steal, assault or damage or intention to use a weapon carried for the purpose of the burglary. In this case, the definition of burglary was not met and the accused will be found ‘not guilty’.

Questions in cases like this
  • Did you enter the property?
  • Did you have permission?
Questions a judge will ask a jury
A judge presiding over a burglary trial will ask the jury to consider if:
  1. The accused had permission to be in the building.
  2. The accused intended to commit an offence.
  3. The accused in fact entered the building.

The maximum penalty for a charge of Burglary (s76 of the Crimes Act 1958) is level 5 imprisonment (10 years).