Burglary: The offence under Australian law

by The FindLaw Team

After entering the term, ‘burglary’ into FindLaw’s search engine, it was rather surprising to learn that there were no hits in regards to the subject. To right this wrong, this piece will attempt to cover the offence of burglary, because a) it’s a rather big oversight and b) either you, or someone you know, has probably been a victim of a burglary at some stage. In fact, so pervasive is the offence, that according to the Attorney-General’s Office, over one-fifth of all recorded criminal offences by the police in Australia, is burglary. So bearing that in mind, we would be amiss not to cover the offence in greater detail.

What is burglary?

Burglary is essentially the entering, or remaining in a building as a trespasser, with the intent of committing an offence. The offence was defined as breaking and entering into a dwelling at night under the common law, whilst the same act committed during daylight hours was referred to as housebreaking. However, burglary is now defined under statute law, with all Australian states and territories making the act a criminal offence. Which is of course, little surprise.

Using s 76(1) of Victoria’s Crimes Act as a guide, a person commits the offence of burglary if the following elements are evident:

“(1) A person is guilty of burglary if he enters any building or part of a
building as a trespasser with intent-

   (a) to steal anything in the building or part in question; or

   (b) to commit an offence-

   (i) involving an assault to a person in the building or part in question;
  (ii) involving any damage to the building or to property in the building or
       part in question…”

Despite the use of the word, ‘he’ in the Victorian legislation, a female is just as liable as a male, to be found guilty of burglary. Further interesting observations in the definition of burglary, can be found in s 109 of New South Wales’ Crimes Act, which defines burglary as entering a dwelling-house with intent, and s 213 of the Northern Territory’s Criminal Code, which states that the offence is an “unlawful entry of buildings.”

What are the elements that make up the offence burglary?

Generally speaking, the constituent parts of burglary, is the intent to commit an offence in a building, and the act of entering into, said building. In R v Dugan, the leading judgment by Street CJ, stated:

“Its ingredients, as the section states, for presently relevant purposes, are first entering a building, and secondly, with intent to commit a felony in the building… The actus reus is the act of entry. The mens rea is the intent to commit the robbery in the building. The coincidence in point of time of these two ingredients is what is encompassed within the Act.”

What is aggravated burglary?

If an offence has been committed while a person was carrying an offensive weapon, then the act is generally referred to as, aggravated burglary. Again, using Victoria’s Crimes Act under s 77(1) as a reference, the features of aggravated burglary are:

“(1) A person is guilty of aggravated burglary if he or she commits a burglary

   (a)  at the time has with him or her any firearm or imitation firearm, any
       offensive weapon or any explosive or imitation explosive; or

   (b)  at the time of entering the building or the part of the building a
       person was then present in the building or part of the building and he
       or she knew that a person was then so present or was reckless as to
       whether or not a person was then so present.”

Even if granted permission by the owner to enter into a home, a person may still be guilty of an offence

It’s not unusual for a person who goes on a holiday to ask a neighbour to drop into their place, and to look after their home while the person is away: But what happens if the neighbour has instead robbed the residence? Well, this is exactly what transpired in Barker v The Queen, and the High Court ruled, that a person will be considered as a trespasser after being given permission to enter the premises, steals from the person once inside the dwelling, and while also possessing the requisite intent – may be found guilty of an offence.

The judges in Barker stated:

“A person who enters the premises of another with the permission or consent of that other does not enter as a trespasser unless the permission or consent is vitiated by fraud or duress.”

This piece is only a brief overview of the offence of burglary. If you have any queries or concerns, please seek the assistance of a lawyer who will be able to help you with your matter.


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