You might be surprised to learn that burglary does not have to involve stealing. Burglary, as an offence, has two parts. Firstly, it involves entering a premise, or place, without the permission of the legal owner or occupier. The second part requires the entering of the premise with the intention of committing an additional offence while on the property. Usually, but not always, this offence is stealing.
If you don’t commit an offence, or have the intention of committing an offence while on the property, you can still be charged with criminal trespass. Trespass means, according to section 70A of the Criminal Code, to enter or be in the place without the consent or license of the owner, occupier or person having control or management of the place. You can also be charged with Trespass if you remain in the place after being requested by a person in authority to leave.
It is interesting to note that burglary can be any trespass combined with an intent to commit any offence. For example, breaking into a house and using the owner’s computer to access child exploitation material would be a burglary, even if the computer was not stolen afterwards. Similarly, if a disgruntled ex-partner broke into your house and smashed your flat screen television with a coffee mug, this would also constitute a burglary because it would be the combination of trespass with criminal property damage.
What is a home burglary?
Home burglary occurs when the offence of burglary is committed in a place ordinarily used for human habitation. This means that home burglaries are not limited to typical houses, but can also take place in an onsite caravan, an apartment, and anywhere that can be proven to be someone’s ordinary place of human habitation. “Place” as defined in the legislation includes a building, structure, tent, or conveyance. It includes any conveyance that at the time of an offence is immovable; or a place that is from time to time uninhabited or empty of property.
What is aggravated burglary?
For the purposes of sentencing, Burglary is considered “aggravated” if it is committed in circumstances of aggravation as defined by section 400(1) of the Criminal Code WA.
A burglary is considered to occur in circumstances of aggravation if immediately before or during or immediately after the commission of the offence the offender:
(i) is or pretends to be armed with a dangerous or offensive weapon or instrument; or
(ii) is or pretends to be in possession of an explosive substance; or
(iii) is in company with another person or other persons; or
(iv) does bodily harm to any person; or
(v) threatens to kill or injure any person; or
(vi) detains any person (within the meaning of section 332(1) or
Immediately before the commission of the offence the offender knew or ought to have known that there was another person (other than a co-offender) in the place
It is interesting to note that if you and a friend snuck into someone's tent to steal a chocolate bar, you would be committing aggravated home burglary.
Significance of Aggravated Home Burglary
If certain offences are committed in the commission of an aggravated home burglary it can have a substantial impact on sentencing. For example, If manslaughter or murder is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender, if it does not impose a term of imprisonment for life must impose a term of imprisonment of at least 15 years. This means that if manslaughter or murder is committed as part of an aggravated home burglary, the Judge has no choice but to impose a sentence of at least 15 years imprisonment. Similarly, if someone is convicted of even an Attempt to Unlawfully Kill and it occurs during an aggravated home burglary, the minimum period of imprisonment is also 15 years.
There are also many other offences where the punishment is more serious if committed during an aggravated home burglary. For the following offences, there is a minimum prescribed period of imprisonment if committed during an aggravated home burglary.
Act Intended to cause grievous bodily harm or prevent arrest - minimum 15 years
Grievous Bodily Harm (Aggravated) - minimum 10.5 years
Grevious Bodily Harm - minimum 7.5 years
Indecent penetration of child under 13 years - minimum 15 years
Sexual offences of a child under 13 - minimum 75% of the maximum penalty
Sexual offences of a child between 13 and 16 - minimum 75% of maximum penalty.
Aggravated indecent assault - minimum 5.6 years
Sexual Penetration without consent - minimum 10.5 years
Aggravated Sexual Penetration without consent - minimum 15 years
Sexual Coercion - minimum 10.5 years
Aggravated Sexual Coercion - minimum 15 years
Sexual offences against Incapable person - minimum 75% of maximum penalty
If you find yourself in need of legal advice regarding any aspect of criminal law, please contact Carter Dickens Lawyers.