This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Burglary (Qld)
In Queensland, burglary is the offence of entering or being in the dwelling of another person with the intent to commit a crime. It is contained in section 419 of the Criminal Code 1899 and is punishable by a maximum of 14 years imprisonment. Longer maximum penalties apply in cases where the offence is committed under circumstances of aggravation. This article outlines the offence of burglary in Queensland.
What is burglary?
Section 419 of the Criminal Code provides, “Any person who enters or is in the dwelling of another with intent to commit an indictable offence in the dwelling commits a crime. Maximum penalty – 14 years imprisonment.”
The term “dwelling” has a wide meaning under the Act and includes a building or even part of a building used as a residence, regardless if it is occasionally uninhabited.
The offence of burglary differs from a simple trespass in that to be guilty of burglary it must be proved that you intended to commit an offence while inside a dwelling. The offence of trespass can be made out simply by proving that a person entered or remained on a property without lawful authority.
It is common for a charge of burglary to be laid in addition to a charge for an offence allegedly committed while inside the dwelling (for example assault, rape or wilful damage of property).
Aggravated offence
A burglary is aggravated if any of the following circumstances exist:
- the offence is committed at night;
- the offender uses or threatens violence;
- the offender is, or pretends to be, armed with a weapon, instrument or noxious substance;
- the offender is in company with one or more other persons;
- the damages or attempts or threatens to damage property;
- an indictable offence is actually committed whilst in the dwelling.
The maximum penalty that applies for an aggravated burglary is life imprisonment.
What Actions Might Constitute Burglary?
A burglary may be made out in a range of situations, including the following.
- Entering a neighbour’s house through a back door left ajar with the intention of stealing their possessions.
- Reaching through an open window of a house in an attempt to steal a wallet from a bedside table.
- Entering a house through an open front door with the intention of assaulting the occupant.
What the Police Must Prove
The police must prove three things in order for a person to be found guilty of burglary.
- That they entered the dwelling, or are in the dwelling of another;
- That they did so with the intent to commit an offence; and
- That the offence they intended to commit was an indictable offence.
There must be evidence that you intended to commit some form of indictable offence.
Possible Defences for Burglary
A person charged with burglary may rely on a number of defences. These include the following.
Lack of intent
A person is only guilty of burglary if they entered with the intent of committing an offence. If the prosecution cannot prove beyond a reasonable doubt that this intent existed, the accused must be found not guilty.
Duress
A person is not guilty of a criminal offence if they carried out the act only because they were made to fear that their life would be in danger if they did not give in to threats. The defence of duress may be relied on in relation to a burglary charge. For this defence to succeed, the accused must demonstrate that an actual threat of death or serious injury was made and that they acted as they did only because of the threat.
Jurisdiction
Burglary can be finalised in the Magistrates Court as a summary offence with the consent of both the defence and the prosecution. Otherwise, it must be dealt with in the District Court.
Aggravated burglary must be finalised in the District Court.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.