Burglary or enter dwelling to commit an indictable offence

An offence by any other name?

Burglary is a broadly defined offence in Queensland which, while it brings to mind ideas synonymous with stealing (see our detailed article on stealing here) that is only way the offence can arise. The offence has been somewhat confusingly labelled as an offence against property, it is actually much, much broader than that. You should always seek legal representation when being charged with a burglary offence, as you will see from this article that in some circumstances this offence carries a maximum penalty of life imprisonment.

It is not uncommon for defendants to be told that they are being charged with Enter dwelling to commit an indictable offence (s419(1) Criminal Code) or Enter dwelling and commits an indictable offence (s419(4) Criminal Code). These two sections are what constitute a Burglary charge.

 

What is a burglary offence?

(1)    Any person who enters or is in the dwelling of another with intent to commit an indictable offence in the dwelling commits a crime.

(2)    If the offender enters the dwelling by means of any break, he or she is liable to imprisonment for life.

(3)    If—

• the offence is committed in the night; or
• the offender—
  
  • uses or threatens to use actual violence; or
  • is or pretends to be armed with a dangerous or offensive weapon, instrument or noxious substance; or
  • is in company with 1 or more persons; ordamages, or threatens or attempts to damage, any property;

(4)    Any person who enters or is in the dwelling of another and commits an indictable offence in the dwelling commits a crime.

Note: For the offence to occur, a person must enter or be in a dwelling, which is defined under the criminal code broadly as a home or place a person resides. It is a separate offence to enter or be in a premises/business.

 

What do the prosecution need to prove?

To succeed in a charge of enter dwelling with intent to commit an indictable offence the prosecution needs to prove beyond a reasonable doubt that a person has:

1. unlawfully entered or unlawfully is in;
2. the dwelling of another;
3. the intent to commit an indictable offence in the dwelling.

In order to prove a circumstance of aggravation, the police must prove that:

1. the dwelling was entered by means of a break; or
2. the offence occurred at night; or
3. violence was threatened or was actually used; or
4. was or pretended to be armed with either a dangerous weapon or noxious substance;
5. in company; or
6. there was damage either real, attempted or threatened to any property.

To succeed in a charge of enter dwelling and commit an indictable offence the prosecution must prove beyond a reasonable doubt that a person has:

1. unlawfully entered or unlawfully is in;
2. the dwelling of another; and
3. committed an indictable offence in the dwelling.

Examples of indictable offences commonly associated with a Burglary charge are including, but not limited to stealing, assault or rape.

It is additionally common for police to charge a burglary offence in the context of a domestic violence matter, whereby an offender enters the ex-partners home and assaults the new partner.

 

Defences

Some of the possible defences to the charge of burglary may be:

• Duress;
• Lawful authority to enter or be in the dwelling;
• No intention to commit an indictable offence / no indictable offence was committed;
• The place in question is not a dwelling.

 

Usual Penalties

This offence is considered to be a serious one by the courts as evidenced by the maximum penalties. The offence can carry with it some very severe maximum penalties.

Where an offence occurs without a circumstance of aggravation, then the maximum penalty is 14 years imprisonment.

If however, a circumstance of aggravation exists, such as if the offence occurs in the night or by way of a break, or with the threat of or actualisation of violence, then the maximum penalty is life imprisonment. It is significant to note that while ordinarily a period of imprisonment is a sentence of last resort, where violence was threatened, attempted or actually occurred then this presumption is displaced.

A review of the sentencing statistics between 2005 and 2018 show that approximately 47.6% of offenders received a term of imprisonment. However, this does not factor the difference between the more serious circumstances of the offending. Community Based Orders and suspended sentences are available options. (Russell Tannock of our office has written a comprehensive article on how periods of imprisonment may be served here).

 

What court will hear my matter?

A Burglary matter without a circumstance of aggravation can be heard in the Magistrates Court level. If a circumstance of aggravation is present, or an indictable offence is committed, then the matter will be heard on indictment in the District Court level.

 

Do I need a lawyer?

Do not attempt to represent yourself in the court on a Burglary charge.  Even if you are charged with an offence without a circumstance of aggravation it is not advisable to undertake this matter yourself, or even with the aid of a duty lawyer. Based on the seriousness of the offending, including if violence was used then the risk of imprisonment arises, engaging an experienced criminal lawyer will help you get the best available outcome.  If the court records a conviction against you it may affect your ability to travel internationally and to gain employment.

 

Engaging Clarity Law to act for you

Engaging us gives you the best chance at obtaining the lowest penalty or avoiding a jail sentence if this is not your first offence.   We are one of the leading criminal law firms in South East Queensland.  We appear frequently in the courts with people charged with burglary, it is this experience that allows us to get the best result for clients.  Other law firms simply don’t have the experience that we do and don’t know the judges like we do.  Just some of the benefits of us acting for you include;

1. we know the judges and what they want to hear to give you the best outcome
2. we have good relationships with the prosecutors meaning we can often have them not seek a jail sentence
3. we are there to help you through the process and make everything as stress free as possible, in most cases you will not have to say anything in court
4. engaging us shows the court you are taking your charges seriously
5. your matter will be heard early, often first, you do not have to wait for 20-30 other matters to be heard before you
6. you will be fully informed of what is to happen in court and what this means for you after court
7. unlike the police or the Judge, we are there to look after you, your privacy and your interests

 

How to get contact us

1. Use our contact form and we will contact you by email or phone at a time that suits you

2. Call us on 1300 952 255 seven days a week, 7am to 7pm

3. Book a time for us to call you

4. Email of firms founder This email address is being protected from spambots. You need JavaScript enabled to view it.

5. Send us a message on Facebook Messenger

We are a no pressure law firm, we are happy to provide information to assist you, if you want to engage us then great, if not then you at least have more information about the charge.

You wont be chased or hounded to engage us.  Remember its critical you get advice before going to court, this offence can have an impact on you, your family and your employment or business.