Break and enter charges in Queensland

Dwellings, premises, and why the label matters

A dwelling is a building or structure kept by the owner or occupier for residence, including parts of it. A shed detached from a house, a shop, a warehouse or an office is not a dwelling, and is charged under section 421 instead.

A break under section 418 includes breaking any part of a building, opening a door or window that was closed and fastened, and includes entry gained by a threat or by collusion with someone inside. Pushing open an unlocked and already ajar door is generally not a break, and that distinction can be worth a very great deal.

Intent, and how it is proved

The prosecution must prove that at the time you entered, you intended to commit an indictable offence inside. There is no requirement that you succeeded, or that anything was taken.

Intent is proved circumstantially. Gloves, a torch, a screwdriver, a vehicle parked away from the address, the time of night, and any subsequent conduct all feed into it. Where you can offer a genuine explanation for being on the property, the intent element is where the case is fought, because entering alone is trespass under section 11 of the Summary Offences Act 2005 (Qld), not burglary.

For section 419(5), the prosecution must also prove the indictable offence was actually committed. Where the property allegedly taken cannot be tied to you, the charge may reduce.

Defences and the arguments worth making

• Consent to enter. If you were invited in, or had a licence to be there, the entering element fails. Disputes between former partners and housemates frequently generate burglary charges where the real question is who was entitled to be at the address.
• Claim of right, section 22(2). Entering to retrieve your own property, honestly believed to be yours, undercuts the intent to commit an indictable offence.
• Identification. Burglary briefs commonly rest on DNA from a touch sample, a partial fingerprint or grainy CCTV. Touch DNA in particular can be transferred, and the statistical weight given to it deserves scrutiny.
• Whether there was a break. The difference between section 419(1) at 14 years and section 419(2) at life turns on a factual question about a window latch. Do not concede it.
• Party liability, sections 7 and 8. A lookout or a driver may be liable, but presence alone is not participation.

Sentencing

Queensland courts treat the burglary of an occupied home as substantially more serious than any other property offence, because of the effect on the occupants. Where the dwelling was occupied at the time, actual imprisonment is very likely even for a first offender.

A commercial break and enter of an empty premises, at the lower end, with an early plea, restitution and a young offender with no history, can attract probation, community service or a suspended term. Repeat property offending with a lengthy history moves quickly to actual custody.

Publishing material about the offence on social media is now a circumstance of aggravation for burglary and related offences. Do not post about it, and if you have, tell your solicitor.