Entering a Place Without Authority or Lawful Excuse
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.
As a summary offence, any summons for this charge will primarily be handled by the Magistrates’ Court.
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
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
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
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.
[1] Anderson v Winther.
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
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?
The offence of Entering a Place Without Authority or Lawful Excuse (s9(1)(e) of the Summary Offences Act 1966) carries a fine of 25 penalty units (around $4,000) or six months imprisonment as the highest possible sentence.
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
[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 >
