The charge of entering a premises differs from the charge of burglary as it refers to a “premises” rather than a “dwelling”. A premises has a wider scope and includes a building or structure of any type.
The offence of entering premises is created by section 421 of the Criminal Code Act 1899 which reads:
- Any person who enters or is in any premises with intent to commit an indictable offence in the premises commits a crime. Maximum penalty – 10 years imprisonment.
- Any person who enters or is in any premises and commits an indictable offence in the premises commits a crime. Maximum penalty – 14 years imprisonment.
- If the offender gains entry to the premises by any break and commits an indictable offence in the premises, he or she is liable to imprisonment for life.
Entering a premises with intent to commit an indictable offence is a serious criminal offence. This is evident by the maximum penalties legislation has decided to impose as punishment. Depending on the presence of any aggravating factors, maximum terms of imprisonment range from 10 years to life.
What is a Break?
A break, for the purpose of subsection (3), refers to any entry to premises that is not achieved by walking through an already open door. A break includes the act of opening an unlocked door and the term defines actions all the way up to forcible entry using tools.
What Actions Might Constitute Entering Premises?
- Opening and entering your unlocked back door looking to steal any valuables.
- Reaching through a window of your neighbour’s house, trying to take the phone from the bedside table.
- Smashing the window of a garage and entering with intent to steal the car.
- Doing a “run-through” of a person’s house intending to seriously injure the occupant as revenge for a previous incident.
What is the Difference Between Entering Premises With Intent And Burglary?
The essential difference between entering premises with intent and burglary is the nature of the place which is trespassed upon. The offence of burglary relates to “dwellings” which is a term used at law to describe places used for residential habitation. “Premises” on the other hand is basically any other building (for example a public office or a public facility).
What the Police Must Prove:
In relation to all enter premises offences the police must prove three things in order for you to be convicted:
- that you entered, or were in, a premises; and
- that you did so with the intent to commit an offence (or that you actually committed an offence); and
- that the offence you intended to commit, or did commit, was an indictable offence.
In order for you to be convicted of entering by break it must also be proved that you entered the premises by a break (as described above).
The police do not necessarily need to prove exactly which offence you intended to commit in the premises in order to convict you, but there must be evidence that you intended to commit some form of indictable offence (such as stealing).
Possible Defences to Enter Premises
- Identity – it wasn’t you who entered the premises.
- Lack of intention to commit an indictable offence.
- The location entered is found not to be a premise as defined in the Act.
Which Court Will Hear Your Matter?
This charge can be heard and determined in the Magistrates Court in its least serious form but, more often than not, proceedings for the offence are taken in the District Court.
Types of Penalties
Imprisonment: Even though it is not a sentence of last resort (as it is in some other states) imprisonment is the most serious penalty which a court can impose upon a person. At its most severe a sentence of imprisonment means that a person must spend a specified period of time within a correctional facility, also called a prison, a jail or a gaol.
Intensive corrections order (ICO): An Intensive Corrections Order is, technically, a form of imprisonment but which is served wholly in the community. This means that a person who is made subject to an ICO will not spend any time in prison but will, instead, be required to adhere to a number of requirements that the court will order.
Probation: A court can make a Probation Order either by itself, meaning the whole of the sentence is probation, or as a component of a sentence of imprisonment, meaning that a person is ordered to serve a period of time (not longer than 1 year) in prison and is then subject to a probation requirement upon release.
Community service order (CSO): As the name implies, a Community Service Order is an order which requires a person to perform unpaid work, normally at some kind of community facility, for a stated number of hours (to a maximum of 240) within a nominated time (usually 6 or 12 months).
Recognisance: A recognisance is a promise which a person makes to be of good behaviour for a stated period of time. A court is empowered to release a person who enters into a recognisance, either with a surety, which is a sum of money which the person agrees to pay if they breach the recognisance, or without one.
Fines: A court is empowered to impose a fine, which is a sum of money which a person is required to pay to the State, for any offence regardless of whether the law creating it nominates a fine as part of the applicable penalty.
Section 19 dismissal: A court can discharge a person absolutely, or upon them entering into a recognisance, without recording a conviction against them, if it is satisfied that it is appropriate to do so.
In all cases where you are sentenced to a penalty other than jail, the court can choose not to record a conviction against you, meaning your criminal record will remain clear and any complications with work or travel may be avoided.
For advice or representation in any legal matter, please contact Armstrong Legal.