Author: Una Ebsworth
Practice area: theft
Una is a Director at Doogue + George, recognised by Doyle's Guide as a Preeminent Criminal Defence Lawyer in Victoria (2026) and an LIV Accredited Criminal Law Specialist since 2014 with over 15 years of experience in serious indictable matters. Her depth of experience in this area means clients receive accurate, considered advice.
View full profile →Una authored this content and last revised it for accuracy on 6 August 2026.
What is the offence of Possessing Housebreaking Implements?
Possessing Housebreaking Implements is a Victorian criminal offence that targets the unlawful holding of tools associated with breaking into premises in suspicious circumstances. It is governed by section 49D of the Summary Offences Act 1966 and applies where a person has such items without a lawful basis.
Key points
- Elements: Custody or possession of a housebreaking implement without lawful excuse.
- Type of conduct: Having tools capable of being used to gain unlawful entry.
- Court level: Magistrates’ Court.
The maximum penalty for Possessing Housebreaking Implements is 2 years’ imprisonment.
Common defences may include lawful excuse, disputing possession or control of the item, or challenging whether the item qualifies as a housebreaking implement.
If you are charged with this offence we can work through the case with you and provide you with the legal assistance you need.
Police Interview
The police may want to interview you in relation to this charge. Anything you tell the police can be used in evidence against you. It is important to remember that you have the right to say ‘no comment’ to police except where they ask for your name, address and date of birth.
Before you speak to police you should speak to a criminal lawyer who can go through the procedures of a police interview and advise you on whether you should provide a comment interview.
Pleading Not Guilty
If you think you have been wrongly charged with this offence it is important to get in touch with a criminal lawyer as soon as possible who can discuss your options with you. We have dealt with this charge often and have successfully been able to have it withdrawn on the basis that the housebreaking implements were actually tools being used by our clients for work. We will be able to help you navigate the system and develop a strategy for your case if you decide to plead not guilty.
Pleading Guilty
Where there is strong evidence against you, you may choose to plead guilty to the charge. It is equally important in these circumstances to have an experienced lawyer represent you.
Our lawyers appear in the Magistrates’ Court on a daily basis and have extensive experience preparing and presenting pleas on behalf of clients. We will work closely with you to ensure your case is presented in the most favourable light, helping you achieve the best possible outcome.
Sentencing
Sentencing in the Magistrates’ Court of Victoria
Source: Sentencing Advisory Council of Victoria (SACStat), Summary Offences Act 1966 (Vic) s 49D(1) — 186 charges across 183 cases, Magistrates’ Court, 1 July 2020 – 30 June 2023.
| Outcome | % |
|---|---|
| Imprisonment | 46.2% |
| Community Correction Order | 24.2% |
| Fine | 17.2% |
| Adjourned Undertaking | 7.5% |
| Other | 2.7% |
| Discharge/Dismissal | 2.2% |
These figures indicate that while imprisonment is common, courts also frequently impose community-based penalties or financial penalties depending on the circumstances of the offence.
Which court will the case be heard in?
It is the sort of charge that is heard in the Magistrates’ Court.
What is the legal definition of Possessing Housebreaking Implements?
A person must not, without lawful excuse, have an implement of housebreaking in his or her custody or possession.
Examples of Possessing Housebreaking Implements
- You are walking along the street late at night carrying a crowbar. The police stop you and question you, and you don’t have a lawful excuse for carrying the crowbar.
Legislation
The legislation for this offence can be found in section 49D of Summary Offences Act 1966.
Elements of the offence
In order to make out this charge, the prosecution must prove the following beyond reasonable doubt:
- The person had a housebreaking implement
- In their custody or possession
- Without lawful excuse
Was the implement a housebreaking implement?
Housebreaking implement is not defined in the Summary Offences Act 1966. The ordinary meaning of ‘housebreaking implement’ would be an item capable of being used breaking into a house. For instance, a crowbar could be capable of opening a window.
Did the accused have the housebreaking implement in their custody or possession?
Whether or not the accused had the implement in their custody or possession will depend on the circumstances. The implement would not necessarily have to be on their person – for instance, if the item is in their handbag, or the boot of their car, this could amount to constructive possession. The prosecution will be looking at whether the accused had access to or effective control over the item.
Did the accused have a lawful excuse?
The accused may have a lawful excuse for possessing a housebreaking implement. For instance, a screwdriver could be used to break into a house, but the accused may be in possession of the screwdriver because they work in construction.
Can they prove you were in possession of a housebreaking implement without lawful excuse?
Defences
Defences to this could be a factual dispute or lawful excuse for possession, as well as the concept of beyond reasonable doubt.
You should ring us and discuss your case if you have been charged. Deciding on whether to plead guilty or not has important implications for you and should be made after proper discussions with a criminal lawyer.
Questions in cases like this
- Were you in possession of a housebreaking implement?
- Could the implement be capable of breaking into a house?
- Did you have a lawful excuse for carrying the implement?
Maximum penalty for section 49D of the Summary Offences Act 1966
The charge of Possessing Housebreaking Implements (s49D of the Summary Offences Act 1966) has a maximum penalty of imprisonment for 2 years.
