Our criminal defence lawyers have years of experience, knowledge, and skill to offer you sound legal guidance if you have been accused of burglary or if you believe that you have a valid defence. Victims of burglary, of course, also have legal recourse.
Section 76 of the Crimes Act 1958 states that it is an offence to enter into a building as a trespasser intending to steal, seriously assault someone or seriously damage property.
The maximum sanction for this crime in Victoria is ten years imprisonment.
Burglary in Victoria
The Victorian legislation definition of burglary differs from other states. In some jurisdictions, a person commits burglary if they access a building unlawfully, intending to commit any chargeable crime.
In Victoria, burglary calls for a person to have had the intention of committing any of the following offences:
- Stealing;
- Assault sanctionable by imprisonment of five years or more;
- Property damage that is sanctionable by imprisonment of five years or more.
It is essential to get legal advice as soon as possible to be aware of your rights, and that proper procedure is always followed.
Burglary, Trespass and Aggravated Burglary: What Is the Difference?
These three offences are often confused. Trespass, at its simplest, involves entering or remaining on property without permission. Burglary requires something more: entry as a trespasser combined with a criminal intention at the moment of entry. Aggravated burglary sits above both, involving circumstances such as a weapon or the presence of another person in the building. The consequences escalate sharply at each step. You can read more in our guide on what aggravated burglary is and its penalties.
Elements To Be Proven
To secure a guilty conviction for burglary, the prosecution has to prove all of the elements mentioned below beyond a reasonable doubt:
- The accused accessed a building or part thereof;
- The accused was trespassing;
- When entering the building, they wanted to steal, assault or damage property.
With aggravated burglary, the following additional elements must also be satisfied:
- The accused carried a firearm, fake firearm, dangerous weapon, explosive or fake explosive; or
- When entering the building, the accused knew or should have known that another person was in the building.
Your lawyer can advise you of any valid defences or mitigating circumstances that might apply.
Why Intent at the Time of Entry Is Often the Weakest Link
The prosecution must prove what was in your mind at the precise moment you crossed the threshold, and that is frequently the hardest element to establish. Intention cannot be photographed or fingerprinted. It is usually inferred from surrounding circumstances, and inferences can be challenged. If the intention to take something only formed after entry, the entry itself may not amount to burglary, and the allegation may look more like a theft matter. Our guide on how a criminal defence lawyer can assist with theft matters explains how those charges are dealt with.
Common Scenarios That Lead to Burglary Charges
Burglary allegations in Victoria often arise from everyday disputes rather than stereotypical break-ins:
- Entering an ex-partner's home during a relationship breakdown, where the prosecution alleges trespass with intent to damage property or assault;
- Entering commercial premises after hours, such as a former workplace, where the right to be there is disputed;
- Cases where any alleged intention only formed after the person was already inside.
Each of these scenarios turns on permission and timing, where a careful defence can make a real difference.
Valid Defences
If you have been charged with burglary or aggravated burglary, you might have a legal defence to that charge.
Lack of Intent
There cannot be a guilty burglary conviction without the intention to commit an indictable offence. If no chargeable offence occurred and the prosecution fails to prove that the accused intended to commit a crime, the accused will not be found guilty.
Not a Trespasser
A person can't be found guilty of burglary if they did not access the building as a trespasser. If the accused legally entered the building, they are not guilty of burglary.
Other Defences
There are a host of factual defences that an accused can rely upon. These include mistaken identity, having an alibi or proving that they didn’t enter the building.
What Happens After You Are Charged
After a burglary charge in Victoria, you will usually be interviewed by police, then bailed or summonsed to appear in court. The first hearing is a mention, where the charges are confirmed and directions are set. Your lawyer will request the brief of evidence, assess its strengths and weaknesses, and advise you on whether to contest the charge or negotiate with the prosecution.
How a Defence Lawyer Tests the Evidence
A burglary brief is rarely as strong as it first appears. An experienced defence lawyer will scrutinise CCTV footage for quality, angles and gaps, examine forensic evidence such as fingerprints or DNA and how it was collected, test the reliability of identification evidence, and comb through witness statements for inconsistencies. Each weak link is an opportunity to raise reasonable doubt.
Practical Dos and Don'ts if You Are Charged
- Do exercise your right to silence in a police interview until you have received legal advice;
- Do write down your recollection of events while it is fresh;
- Do comply strictly with any bail conditions;
- Don't contact the complainant or any witnesses about the matter;
- Don't discuss the allegations on social media or with anyone other than your lawyer;
- Don't plead guilty just to get it over with, before the evidence has been reviewed.
Jurisdiction
If the accused is charged with burglary or aggravated burglary and the alleged stolen property is worth under $100,000, the matter will be heard in the Magistrates Court.
If the stolen property is valued above $100,000, or if there are aggravating circumstances, the matter will proceed to the County Court or Supreme Court of Victoria.
Burglary allegations often sit alongside other dishonesty charges. For related reading, see our guides on instructing a criminal defence lawyer on robbery and fraud and deception offences.
Conclusion
It’s important to remember that everyone has rights, both the accused and the victim. The law has been drafted to protect those rights. For qualified legal expertise, contact us so that you can know that the case goes ahead with the best possible prospects.
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