Criminal Law

Burglary Offences

What The Law Says:

The Criminal Code in WA says that if you enter or remain in the place of another person, without that other person’s consent and do so with an intention to commit an offence in that place you will be guilty of a crime.

It also says that if you enter or remain in the place of another person, without that other person’s consent and while doing so commit an offence you will be guilty of a crime.

What The Prosecution Must Prove:

Where the charge involves the accused being in or entering the place without consent and while doing so intending to commit an offence the Prosecution must prove:

  1. That the accused entered or was in that place of another person;
  2. That the accused did not have the consent of the person to be there;
  3. That the accused had formed an intention to commit an offence either upon entry or when in the place.

Where the charge involves the accused being in or entering the place without consent and while doing so actually committing an offence the Prosecution must prove:

  1. That the accused entered or was in that place of another person;
  2. That the accused did not have the consent of the person to be there;
  3. That the accused actually committed an offence while in the place.

The offence of Burglary becomes more serious when it is committed in circumstances of aggravation. Where circumstances of aggravation are alleged and proven the penalties become more severe. Circumstances of aggravation include situations where the offender:

  1. Is or pretends to be armed with a dangerous or offensive weapon?
  2. Is or pretends to be in possession of an explosive substance?
  3. Is there a company of another person or persons?
  4. Does bodily harm to any person?
  5. Threatens to kill or injure any person;
  6. Detains any person; or
  7. Immediately before the offence knew or ought to know that there were other people in that place (other than any co-offenders).

In Which Court My Charge Likely To Be Heard In?

Burglary charges often involve complex issues. The offence of Burglary can be dealt with in the Magistrates Court but it may also be committed to the District Court for determination before a Judge and Jury. The court that determines the charge of Burglary depends on the circumstances of aggravation that are alleged.

Imprisonment is generally a more likely outcome for the offence of Burglary being dealt with at sentencing in the District Court.

However, if you are charged and convicted Burglary offence, the likelihood of serving a term of imprisonment is high irrespective of the court that hears and determines the matter.

The Three Strike Rule

A Court sentencing an offender who has committed three separate home burglaries must sentence the offender to at least 12 months immediate imprisonment.

Burglary is a serious offence and carries tough penalties in Western Australia. Depending on the circumstances the offence can be tried summarily in the Magistrates Court or on an indictment in the District Court.

  • Any action where you enter and remain in the place of another, without their consent, and while doing so you either intend to commit or do commit an offence.
  • A ‘place’ can include someone’s home, property or business.
  • An “offence” includes a wide range of different offences such as stealing, property damage, assault, or breach of VRO.
  • Depending on the circumstances of the case, the penalty will vary and the offence of burglary does not always result in imprisonment being imposed by the court.
  • However the law in Western Australian also imposes a minimum term of imprisonment for repeat burglary offenders. An adult offender with two prior convictions for burglary must, upon the third conviction, be sentenced to at least two years imprisonment.
  • Ordinarily – 14 years.
  • Where the place is ordinarily used for human habitation – such as someone’s home – 18 years.
  • Where there are circumstances of aggravation – such as being armed with a weapon, possessing an explosive substance, doing bodily harm to someone, threatening to kill or injure someone or detaining someone, or knowing that there were other people in the place at the time – 20 years imprisonment.
  • If dealt with summarily – maximum penalties range from 2 years + $24,000.00 to 3 years + $36,000.00.

The offence of Burglary can be dealt with in the Magistrates Court but it may also be heard and determined in the District Court before a Judge and Jury. The court that hears the charge depends on the circumstances of aggravation that are alleged in the offence.

We Can Help

It goes without saying that you should seek advice and representation from a criminal lawyer who has experience dealing with Burglary charges and where possible can negotiate with the prosecution in an effort to have the charges remain in the Magistrates Court.

Have you or someone you know been charged with Burglary? To the secure, the services of an experienced criminal lawyer who will provide straightforward & no-nonsense advice and the highest quality court representation call Andrew Williams Criminal Law Offices on (08) 9278 2575.

Contact our lawyers now

At Andrew Williams Criminal Law we're here to help you with the best legal advice.

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