Burglary 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.
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
Questions in cases like this
- Did you enter the property?
- Did you have permission?
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’.
Maximum penalty and court that deals with this charge
The maximum penalty for a charge of Burglary is level 5 imprisonment (10 years).
A burglary charge is generally heard summarily in the Magistrates’ Court, but can also be heard in the County Court.
The law for Burglary can be found on section 76 of the Crimes Act 1958.
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?”
Elements the prosecution must prove
The prosecution must prove the following elements beyond reasonable doubt to make out the charg of burglary:
- The accused entered or remained in the building; and
- The accused was a trespasser; and
- The accused intended on committing an offence.
Sentencing in the higher courts
From 1 July 2013 to 30 June 2018, there were a total of 72 cases (779 charges) of Burglary that were heard in the higher courts of Victoria. Most of these cases resulted in Imprisonment (86.1%) but there were a few others that led to Community Correction Order (9.7%), Adjourned Undertaking/Discharge/Dismissal (2.8%), and Youth Justice Centre Order (1.4%).
Of the prison terms imposed, majority were between 1 and 2 years (24.2%). The longest term imposed was between 7 and 8 years (1.6%).1
Sentencing in the Magistrates’ Courts
In the Magistrates’ Courts, a total of 5,847 cases (12,340 charges) of Burglary were heard from 1 July 2013 to 30 June 2016. Majority of these cases also resulted in Imprisonment (46.5%). Other sentences imposed include:
- Community Correction Order – 28.4%
- Wholly Suspended Sentence – 7.9%
- Adjourned Undertaking/Discharge/Dismissal – 6.0%
- Fine – 5.5%
- Partially Suspended Sentence – 3.2%
- Youth Justice Centre Order – 1.4%
- Other – 1.2%
Of the cases that led to imprisonment, majority were sentenced to prison terms that are between 6 and 12 months (26.7%). The longest term imposed was 36+ months however this was least imposed at only 1.0% of the cases that led to prison terms.
For Community Correction Orders (CCO), the longest CCO term imposed was more than 24 months (13.7%, non-aggregate). Majority were sentenced to a term between 12 and 18 months (46.1%, non-aggregate).2
Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.3
Questions a judge will ask a jury
A judge presiding over a burglary trial will ask the jury to consider if:
- The accused had permission to be in the building.
- The accused intended to commit an offence.
- The accused in fact entered the building.
Other important resources
- SACStat Higher Courts – Crimes Act 1958 (Vic): s 76(1) – burglary
- SAC Statistics – Crimes Act 1958 (Vic): s 76(1) – burglary
Check out some of the criminal cases we’ve defended in court that involve the offence of burglary:
- Sentence Appeal for Burglary and Theft
- Community Correction Order for Multiple Burglaries
- Diversion for Possess Drug of Dependence
- Withdrawing Burglary Charge and Other Offences
- Burglary and Theft – Fine Without Conviction
 Sentencing Advisory Council. “SACStat Higher Courts – Crimes Act 1958 (Vic): s 76(1) – burglary.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_6231_76_1.html (accessed September 2, 2019).
 Sentencing Advisory Council. “SAC Statistics – Crimes Act 1958 (Vic): s 76(1) – burglary.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_76_1.html (accessed September 2, 2019).
 Sentencing Advisory Council. “Abolished Sentencing Orders.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders (accessed September 2, 2019).