Possessing Housebreaking Implements

– section 49D of the Summary Offences Act 1966
Housebreaking Implements
This charge is generally laid in situations where a person has in their possession an implement which is a housebreaking implement.
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.
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?
What are some of the possible defences to Possessing Housebreaking Implements?

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.

Maximum penalty and court that deals with this charge

The charge of Possessing Housebreaking Implements has a maximum penalty of imprisonment for 2 years. 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.

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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:

  1. The person had a housebreaking implement
  2. In their custody or possession
  3. 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?”
Sentencing in the Magistrates’ Courts

Magistrates' CourtThis charge is generally laid in situations where a person has in their possession an implement which is a housebreaking implement.
From 1 July 2013 to 30 June 2016, 196 cases (203 charges) of Possess Housebreaking Implements were heard at the Victorian Magistrates’ Courts. Most of these cases led to imprisonment (58.7%) but others forms of sentencing were also imposed:

  • Community Correction Order – 16.3%
  • Fine – 10.7%
  • Wholly Suspended Sentence – 6.1%
  • Adjourned Undertaking/Discharge/Dismissal – 4.1%
  • Partially Suspended Sentence – 3.1%
  • Youth Justice Centre Order – 0.5%
  • Other – 0.5%

The longest prison term imposed was 36+ months and this was handed down by courts in 0.9% of the cases that resulted in imprisonment. The majority of the prison terms imposed were however between 3 and 6 months (27.0%).

Most of those who were fined were under the “$500 < $1,000” and “$1,000 < $2,000” categories. They comprised a total of 56.0% of those who were fined (aggregate). For non-aggregate fines, the majority were under the “Less than $500” and “$500 < $1,000” categories and these comprised 24.0% of those who were fined (non-aggregate).1

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.2

Other important resources
Case studies related to Possessing Housebreaking Implements