Burglary and Aggravated Burglary

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 living 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.

The following acts may constitute Burglary or Aggravated Burglary:

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

• Breaking into a building through the back door to steal a machine.
• Climbing through a window of a shop to steal clothing.
• 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:

• Entering a service station with a weapon to steal cash from the register.
• Entering the building of the business from which your employment has recently been terminated to destroy the office with explosives in your possession.

What Must Be Proven?

For a person to be found guilty of Burglary the Prosecution must prove each of the following matters 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.

If the Prosecution does not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear the 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.

Possible Defences

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.

Common Questions

Will I receive a criminal conviction?

Yes, you can receive a conviction and criminal record for this offence, however, the circumstances of the offending, whether you have a criminal record, your personal background, and other mitigating factors will influence this.

In Victoria, a Court can impose any of the following penalties for a common assault charge.

• Jail Sentence
• Community Corrections Orders (CCO)
• Fine
• Adjourned undertaking
• Diversion

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover a conviction for an offence of violence can completely rule out certain career paths such as teaching and a range of government employment options. Violent offences may also result in sentences that include imprisonment even where an individual has no previous convictions.

Will I go to jail?

Imprisonment is not the only outcome available to a Court and penalties will range from good behaviour bonds to fines, to community corrections order, with prison being a sentence of last resort. The circumstances of the offending, whether you have a criminal record, your personal background, and other mitigating factors will influence the outcome. 

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