Burglary

burglary trespassingBurglary is the entry into a building or part of a building by a person as a trespasser. Under the criminal laws of Victoria, Australia, the definition of burglary also includes the intention to:

  • steal property from the building or part of the building;
  • commit an offence punishable by imprisonment for a term of five years or more involving either an assault to a person in the building or part of the building;
  • to damage to the building or to property in the building or part of the building.

Forced entry is not a necessary element of the offence of burglary.

Burglary is a serious offence punishable by up to 10 years imprisonment. The offence is capable of being heard both in the Magistrates’ Court and superior courts such as the County Court. Burglaries on residential premises, as opposed to commercial premises, are considered particularly serious. It is a common offence and all our lawyers regularly defend people charged with having committed it.

The elements of the offence: The definition of burglary

Burglary is made an offence by s 76 of the Crimes Act (Vic) (“the CA”). The offence has the following three elements:

  1. The accused entered a building or part of a building;
  2. The accused did so as a trespasser; and
  3. At the time of entry the accused intended to:
    1. steal something from the building or part of the building; or
    2. commit an offence punishable by imprisonment for a term of five years or more involving either: an assault to a person in the building or part of the building; or damage to the building or to property in the building or part of the building.

The prosecution must prove each of these three elements beyond a reasonable doubt for an accused to be found guilty of burglary. If the prosecution fails to establish any of these three elements, then the meaning of burglary is not really satisfied and an accused person will be found not guilty.

Element 1 of burglary: The accused entered into a building or part of a building

The first element the prosecution must prove beyond a reasonable doubt is that the accused entered a ‘building’ or ‘part of a building’. Whether or not a structure or thing is a ‘building’ is a question of fact for the jury or for the Magistrate. Amongst things, features relevant to that determination include the size, weight and permanence of the structure or thing, the presence of locks and doors, and the availability of electricity.

Pursuant to s 76(2) of the CA, a building includes an inhabited vehicle or vessel. As a result, trespassing onto a boat or into a caravan with an intention to steal is a burglary.

Interesting issues and potential defences to this element can arise where an accused person only entered the external structure of a building such as a porch. In such cases it is for the jury or Magistrate to determine whether or not the accused entered the ‘building’ and hence whether the incident falls under the burglary definition.

Element 2 of burglary: The accused did so as a trespasser

The second element the prosecution must prove beyond a reasonable doubt is that the accused entered the building or part of a building as a trespasser. Trespass means entry by a person without right or authority to enter. The person must be knowing that he did not have a right or authority to enter, or being reckless as to the facts which make that person not have any right or authority to enter. For a person to have been ‘reckless’ as to whether or not he or she had the right or authority to enter a building or part of a building, he or she must have believed that it was probable that he or she did not have a right or authority to enter the building. An accused person will be not guilty if they were merely aware of the possibility that his or her entry was unauthorised.

It is therefore a defence to this element, and consequently to a charge of burglary, if an accused person had a right or authority to enter the building or the relevant part of the building. Examples include where an accused person had a right to possession or the permission of the person in possession. An accused person may also have a limited authority to enter a building or part of a building. Potential limitations include the time, place, and manner or purpose of entry. Entry outside of those limitations may be a trespass. If an employee were to enter a workplace after hours and steal property from within for example, then that satisfies the burglary definition and so the employee may be found guilty.

An interesting potential situation is where a person remains on property after authority to remain has been withdrawn. Especially if that person then steals or commits an offence punishable by imprisonment for a term of five years or more involving either: an assault to a person in the building or part of the building; or damage to the building or to property in the building or part of the building. In such cases an accused will be not guilty of the offence. For an accused person to be guilty in this instance, an accused would need to leave and then re-enter the building or part of the building.

Element 3 of burglary: At the time of entry the accused intended to steal something from the building or part of the building; or commit an offence punishable by imprisonment for a term of five years or more involving either an assault to a person in the building or part of the building, or damage to the building or to property in the building or part of the building

The prosecution must prove that the accused intended to commit the prescribed offences at the time of entry beyond a reasonable doubt. This means that by burglary definition, an accused person will be not guilty if the relevant intention was only formed after the accused entered the building.

Intention to steal
This element of burglary will be proven if the prosecution can establish that the accused intended to steal anything in the building or part of the building. The prosecution does not need to prove an accused person intended to steal a specific item or that anything actually was stolen. An accused person may still be found guilty of burglary even though nothing was stolen.

Therefore, if an accused person’s intention was to take property in circumstances not amounting to theft, for example where an accused person believed he had a legal right to the property, then this element will not be met and an accused person will be not guilty of burglary.

Intention to assault a person
The prosecution can also satisfy this element by proving that the accused entered the building or part of the building to commit an offence involving an assault upon a person in the building which is punishable by imprisonment for a term of five years or more. Pursuant to s 320 of the CA, common law assault is punishable by 5 years imprisonment. The prosecution can therefore satisfy this element by proving that the accused entered the property intending to apply force to the body of someone inside or intending to cause someone inside to apprehend the immediate application of force to his or her body.

Intention to damage property
The final way the prosecution can satisfy this element is by proving the accused entered the building or part of the building with an intent to commit an offence involving any damage to the building or to property in the building which is punishable by imprisonment for a term of five years or more.

Potential defences

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’.

Jurisdictional limits

Burglary is an indictable offence, which means that it may be heard in the higher courts. However, it can also be tried summarily in the Magistrates’ Court if:

  • the offence involves an intent to steal property the amount or value of which does not in the judgment of the court exceed $100,000;
  • the Magistrate considers the charge appropriate to be dealt with summarily; and
  • the defendant and/or the prosecutor consents.

A prosecutor may demand that a serious of charge of burglary be heard in the County Court in situations where it may well be within the limits of the Magistrates’ Court. The seriousness of the circumstances surrounding the charge may contribute as to why a prosecutor adopts this course. A criminal lawyer can assist you in making an application to have the matter heard in the Magistrates’ Court which is often to an accused person’s advantage.

Sentencing for Burglary

There are a variety of sentencing options that may be imposed for a charge of burglary both at the Magistrates’ and County Courts. Given that the maximum penalty for this charge is a 10-year prison term, imprisonment is one of the many possible sentences. Note though that the maximum penalty is a sentence handed down by courts only during worst cases of this offending. Other possible sentences include fines, community corrections orders, adjourned undertaking, youth justice centre orders, and dismissals.

Suspended sentences were also previously imposed but was removed in Victorian higher courts for all offences committed on or before 1 September 2013, and in the Magistrates’ Courts for all offences committed on or before 1 September 2014. Similarly, community-based orders and intensive corrections orders were also sentencing options until they were abolished on 16 January 2012 and replaced by community corrections orders.

Sentencing in the Magistrates’ Courts

From 1 January 2010 to 31 December 2012, there were a total of 5,983 cases of burglary that were sentenced in Victorian Magistrates’ Courts. Of these cases, 2,247 (or 37.6%) resulted in an imprisonment, with the majority (28.0%) sentenced to 12>18 months. The longest prison term imposed was 36+ months (2.4%) and the shortest at less than 3 months (11.4%).

Other sentencing outcomes include: partially suspended sentence (4.4%), wholly suspended sentence (17.9%), youth justice centre order (2.1%), community correction order (8.0%), intensive correction order (3.9%), community-based order (1.8%), fine (5.8%), ADU/discharge/dismissal (7.1%), and other forms (1.5%).

Please refer to the Sentencing for Burglary section above regarding the abolition of suspended sentences, community-based orders, and intensive corrections orders.

Sentencing in the Higher Courts

From July 2010 to June 2015, there were 62 people sentenced to a charge of burglary in Victorian higher courts. Imprisonment was imposed to 44 of these people with the majority (31.8%) sentenced to 1>2 years. The longest prison term imposed was 5>6 years given to 4.6% while the shortest was for less than a year given to 11.4%.

Other sentencing outcomes include: partially suspended sentence (6.4%), wholly suspended sentence (8.1%), youth justice centre order (3.2%), community correction order (6.4%), community-based order (1.6%), fine (1.6%), and ADU/discharge/dismissal (1.6%).

Please refer to the Sentencing for Burglary section above regarding the abolition of suspended sentences, community-based orders, and intensive corrections orders.

To view sentencing decisions by Victorian County Courts for the charge of Burglary, visit this page.

Check out some of the criminal cases we’ve defended in court that involve the offence of burglary: