A Tale of a Robber, a Thief and a Burglar…

We have previously discussed other topics involving the theft of property, such as theft and robbery. Burglary is a unique offence in that it involves both trespass on a premises and the commission of another offence, such as theft or assault.


The offence of ‘Burglary’ involves entering a building (or part) as a trespasser (entry without lawful excuse) with a specific intention at the time of entry.[1] That intent must be to either:

  1. Steal something maintained on the property;
  2. Assault someone on the property;
  3. Commit another offence, such as damage to the property; or
  4. Commit any serious offence (one that carries a 5-year maximum term of imprisonment).[2]

‘Building’ can include both residential and commercial premises and also vessels or vehicles.

Elements of the Burglary Offence

In order to establish a Burglary offence, The Prosecution must prove beyond ‘reasonable doubt’ that you:

  1. Entered a building, part of a building, vessel or vehicle (such as a caravan);
  2. Without permission (Trespass); and
  3. With the intent to steal property, commit assault or other serious offence carrying a penalty of more than 5 years imprisonment.[3]

In order to prove the second element (Trespass), the Prosecution must prove that you:

  • Entered the building, part of the building or vessel; and
  • You knew (or were reckless to the fact) that you had no permission to enter the premises.[4]

A Burglary is considered to be aggravated in two instances:

  • Where it is alleged that you carried a firearm (including an imitation), weapon or explosive at the time the Burglary was committed; or
  • A person was present in the building and you knew you were reckless to that fact.[5]

Possible Sentence

If you are found guilty of the crime of Burglary, you could face a maximum penalty of 10 years imprisonment.[6] For Aggravated Burglary, the maximum penalty is 25 years imprisonment.[7] For aggravated Home Invasions, there is a minimum 3-year non-parole period.

Defences to Burglary

If you have been charged with Burglary, you can argue (establish doubt) that you were not the person who committed the offence (particularly if you can prove you were not at the crime scene). You can also argue that the premises you entered do not meet the classification of a ‘Building’ and thus the first element won’t be satisfied.[8] You can also argue that you did not actually enter the internal structure of the building (e.g. you remained on an external element of the building and therefore did not Trespass).

As Trespass is integral to a Burglary offence, you can argue that you had permission to be on the premises at the time the offence is alleged. The Prosecution must establish that you were aware you did not have the authority to access the premises. If they are relying on a ‘reckless intention’ it is a defence to argue you were ‘aware’ that authority to enter the premises was ‘possibly’ not granted.[9]

The Prosecution must also prove that the Trespass AND an intention to commit another offence were formed before entry to the building. For example, it is a defence to the charge to prove that an intention to steal property was formed after entering the premises or that you had a legal claim to the property.

However, the fact that the secondary offence was not present (e.g. nothing was actually stolen) is not a defence to a Burglary charge. Any defence raised will rely on the factual circumstances that are unique to your case. Therefore, seeking legal assistance will help you to navigate the complexity of the law.

[1] Crimes Act 1958 (Vic) s 76(1)(a).
[2] Crimes Act 1958 (Vic) s 76(1)(ii); 76(1)(b).
[3] Crimes Act 1958 (Vic) s 76.
[4] Barker v R (1983) 153 CLR 338.
[5] Crimes Act 1958 (Vic) s 77(1).
[6] Crimes Act 1958 (Vic) s 76(2).
[7] Crimes Act 1958 (Vic) s 77(2).
[8] Crimes Act 1958 (Vic) s 76(2). B and S v Leathley [1979] Crim LR 314.
[9] R v Verde [2009] VSCA 16.

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