A Criminal Defence Lawyer’s Insights Into Burglary

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 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.

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.

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.


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.


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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