Burglary and Aggravated Burglary - Charges, Penalties and Sentencing

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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 and Aggravated Burglary (Vic)


A person will be found guilty of burglary under section 76 of the Crimes Act 1958 if he or she enters a building as a trespasser with the intent to steal, assault or cause damage to the building or property. The definition of “building” also includes a vehicle or vessel that is inhabited, regardless of whether or not the person lives in it is there or not. The maximum penalty for burglary under section 76 of the Crimes Act 1958 is 10 years imprisonment.

The Offence of Aggravated Burglary

Section 77 of the Crimes Act 1958 provides for two ways in which a person can be found guilty of aggravated burglary. These are:

  • Where the accused commits a burglary and at the time has in their possession a firearm, imitation firearm, offensive weapon, explosive or imitation explosive; or
  • Where the offender enters the building with the knowledge that a person was present or was reckless as to whether a person was present in the building.

The maximum penalty for aggravated burglary under section 77 of the Crimes Act 1958 is 25 years imprisonment.

What Actons Might Constitute Burglary or Aggravated Burglary?

Examples of acts that could result in a charge of burglary include:

  • Breaking into a house through the back door to steal a television;
  • Climbing through a window of a caravan to damage the inside; or
  • Entering a warehouse of a company through the roof to damage stock.

Examples of acts that could result in a charge of aggravated burglary include:

  • Breaking into a two-story home to damage a person’s television and valuables, knowing the owners are upstairs in the home; or
  • Entering the building of the business from which your employment has recently been terminated to destroy the office with explosives in your possession.

What the Police Must Prove

To find a person guilty of burglary, the prosecution must prove each of the following elements beyond a reasonable doubt:

  • They entered a building or part of a building
  • They entered the building as a trespasser
  • At the time of entering the building they intended to steal, assault or damage property.

To find a person guilty of aggravated burglary, the prosecution must also prove each of the following elements beyond a reasonable doubt, in addition to the above elements for burglary:

  • The accused had in their possession a firearm, imitation firearm, an offensive weapon, explosive or imitation explosive; or
  • At the time of entering the building the accused knew there was a person in the building or was reckless as to whether a person was present in the building.

Possible Defences for Burglary & Aggravated Burglary

A person charged with burglary or aggravated burglary can validly defend the charge by arguing that:

  • They did not enter a building or part of a building;
  • That they were not trespassing;
  • That they did not intend to steal, assault or cause damage to the property;
  • That they did not have in their possession a weapon;
  • That they were not aware and could not have been aware that a person was present in the building.

Which Court Will Hear Your Matter?

If you have been charged with burglary or aggravated burglary and the value of the property which is alleged to have been stolen is under $100,000, your case may be heard summarily in the Magistrates Court, provided the consent of the defence and the prosecution is obtained.

However, if the amount or value of the property exceeds $100,000, your matter will be heard in the County Court or Supreme Court of Victoria.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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