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Other Criminal Law

6. Burglary

Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 30 Aug 2015
  • Burglary occurs when a person unlawfully enters premises with the intention of committing an offence. It is also sometimes referred to as ‘break, enter and steal.’
  • The offence of burglary has three elements (parts):
    • the accused entered a building or part of a building;
    • the accused entered as a trespasser; and
    • the accused intended to:
      • steal something from the building;
      • seriously assault a person in the building; or
      • damage the building or property on the premises.
  • A building includes part of a building such as a garage.
  • Entering a building as a trespasser means that the accused did not have permission or consent to enter the building.
  • The prosecution must also prove that at the time the accused entered the building they intended to commit an offence of:
    • theft
    • assault; or
    • criminal damage.
  • In relation to theft the prosecution does not need to prove that the accused intended to steal a specific item. Further the prosecution need not prove that the accused actually stole anything.
  • In relation to assault the prosecution must prove that the accused intended to commit an offence involving an assault on a person in the building punishable by imprisonment for a term of five years or more. This includes the following offences:
    • common law assault;
    • causing injury intentionally or recklessly;
    • causing serious injury intentionally or recklessly;
    • causing serious injury in circumstances of gross violence intentionally or recklessly;
    • murder, attempted murder and manslaughter; and
    • sexual assault or rape.
  • For more information see our Homicide, Assault and Sexual Assault topic.
  • In relation to criminal damage this includes the offences of arson or destroying or damaging property. For more information see our Criminal Property Damege topic.
  • Aggravated burglary occurs where an accused commits a burglary and at the time of entering the building:
    • they know or are reckless that another person is present in the building; or
    • they are armed with:
      • a firearm;
      • an imitation firearm;
      • an offensive weapon;
      • an explosive; or
      • an imitation explosive.
  • Burglary carries a maximum penalty of 10 years imprisonment. Aggravated burglary carries a maximum penalty of 25 years imprisonment.

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