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 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:

If he or she commits a Burglary and at the time has in his or her 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 Burglary may include:

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

Examples of Aggravated Burglary may 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 you guilty of Burglary, the prosecution must prove each of the following elements beyond a reasonable doubt:

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

To find you 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:

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

Possible Defences for Burglary & Aggravated Burglary

The most common ways to defend a charge of Burglary or Aggravated Burglary can include the following:

  • To maintain your innocence if you did not commit the act
  • To argue that you did not enter the building or part of the building
  • To argue that you were not trespassing
  • To argue that you did not intend to steal, assault or cause damage to the property
  • To argue that you did not have in your possession a weapon, if you have been charged with Aggravated Burglary
  • To argue that you were not aware that a person was present in the building
  • To raise necessity, duress or self-defence as the reason for your conduct.

Which Court Will Hear Your Matter?

If you have been charged with Burglary or Aggravated Burglary and provided the amount or value of the property which has alleged to have been stolen is under $100,000, your case may be heard summarily in the Magistrates Court, provided the consent of the accused 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 or Supreme Court of Victoria.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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