Entering a Place Without Authority or Lawful Excuse

by Bernadette L · Updated October 26, 2018

– section 9(1)(e) of the Summary Offences Act 1966

A person will be charged with being on premises unlawfully if they enter a private or scheduled public place without authority or permission to do so. It could be that the person may have climbed a fence or gone into an area that they know is not for the public. Another example of being on a premise unlawfully is if a person entered a place when there was a sign saying not to.

Examples of Entering a Place Without Authority or Lawful Excuse

Entering a school yard at night
Entering a staff only area of a shop
Entering a job site without permission or lawful excuse

Questions in cases like this

Did you enter the exclusion area?
Did you have a reason for being there?
Was it in fact you that entered the property?

What are some of the possible defences to Entering a Place Without Authority or Lawful Excuse?

A person charged with this offence may rely on one of the following defences:

honest and reasonable mistake of belief
necessity
lack of intent
sudden or extraordinary emergency
incorrect factual matrix

Maximum penalty and court that deals with this charge

This offence carries a fine of 25 penalty units (around $4,000) or six months imprisonment as the highest possible sentence. As a summary offence, any summons for this charge will primarily be handled by the Magistrates’ Court.

Legislation

Entering a place without authority or lawful excuse as described above is an offence pursuant to section 9(1)(e) of the Summary Offences Act 1966.

Elements of the offence

The prosecution must prove the following two elements:

The accused wilfully entered a private or scheduled public place; and
The accused was given notice (whether it be verbally or in writing) prohibiting that accused entry

“Can they prove that you entered the property?”

What does ‘Wilfully’ Mean?
The Prosecution must prove that a person intended to trespass and that they did not know that they had no lawful authority to be there.¹

Sentencing in the higher courts

The higher courts of Victoria heard 54 cases of Entering a Place Without Authority or Lawful Excuse from 1 July 2011 to 30 June 2016. Majority had resulted in imprisonment (57.4%) which were all sentenced to a prison term of 0 < 1 year.

Various other sentencing options were also imposed: Community Correction Order (20.4%), fine (9.3%), adjourned undertaking/discharge/dismissal (9.3%), partially suspended sentence (1.8%), and Youth Justice Centre Order (1.8%).²

Please note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore all offences committed on or after 1 September 2013 will not have this available as a sentencing option.³

Sentencing in the Magistrates’ Courts

The Magistrates’ Courts of Victoria heard a total of 2,269 cases (2,626 charges) of Entering a Place Without Authority or Lawful Excuse from 1 July 2013 to 30 June 2016. These cases resulted in a variety of sentencing options with the majority receiving imprisonment as a penalty (28.0%). Other sentences were: Community Correction Order (23.7%), fine (22.2%), adjourned undertaking/discharge/dismissal (19.4%), wholly suspended sentence (4.1%), partially suspended sentence (1.4%), Youth Justice Centre Order (0.6%), and other sentencing options (0.6%).

The longest prison term imposed was 36+ months but this was given to only 0.6% of those who received imprisonment as a sentence. The majority was given less than 3 months (35.0%) of gaol term.

Of those who received a financial penalty, 2.3% (aggregate) received the highest amount imposed which was in the $5,000 < $10,000 category. The majority however was sentenced to a fine in the $500 < $1,000 category (31.2% for aggregate and 9.1% for non-aggregate).⁴

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.⁵

Other important resources

Call Doogue + George

Case studies related to Entering a Place Without Authority or Lawful Excuse

[1] Anderson v Winther.
[2] SACStat Higher Courts – Summary Offences Act 1966 (Vic) : s 9(1)(e) – enter place without authority/lawful excuse < https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_7405_9_1_E.html >
[3] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >
[4] SAC Statistics – Summary Offences Act 1966 (Vic) : s 9(1)(e) – enter place without authority/lawful excuse < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/7405_9_1_e.html >
[5] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >