Break and Entering
BREAK AND ENTER OR BURGLARY
BREAK AND ENTER OR BURGLARY – GENERALLY
Break and Enter or Burglary as it is referred in the Higher Courts is a serious offence under the Criminal Code in Queensland. Burglary is the offence committed by any person who enters in the dwelling of another with intent to commit an indictable offence in that dwelling.
The maximum penalty for this offence is 14 years, or life imprisonment, dependent upon the circumstances that you have been charged with.
The definition of “dwelling” is broadly defined under the Act and includes any building or structure which is for the time being kept by the owner or occupier for residence for themselves, their family or their servants, and it is immaterial that it is from time to time uninhabited.
WHAT IS BURGLARY BY BREAK?
If an offender enters the dwelling by means of any break, he or she may be subject to life imprisonment depending on the circumstances of the break.
Commonly people believe that to constitute a Break and Enter, a person must use force to enter the property. Whilst this does constitute Break and Enter, so can many other means of entering a property.
To constitute break, a person must have broken any part, whether external or internal of any dwelling, or has opened, by unlocking, pulling, pushing, lifting, or any other means, any door, window shutter, cellar, flap, or other thing, intended to close or cover an opening in a dwelling, or an opening giving passage from one part of the dwelling.
AGGRAVATING FEATURES OF THE OFFENCE
The offence of Burglary or Break and Enter may be aggravated in circumstances where a person has threatened violence, committed the offence at night, was armed (or pretended to be armed) with any weapon, had one or more persons with them at the time the offence was committed, or damaged or attempted to damage property.
A circumstance of aggravation is when a person’s charge is accompanied by facts which made the original offending worse. When charged with a circumstance of aggravation, the charge itself becomes much more serious and you may be subject to an increased penalty when sentenced in Court than you would be if the offence were committed without that aggravating feature.
If you have been charged with a circumstance of aggravation, you may choose to contest the charge completely, or alternatively, you may choose to plead guilty to the offence of Burglary but contest the circumstance of aggravation. If the circumstance of aggravation is to be contested, prosecution must prove beyond a reasonable doubt that it existed at the time the offence was committed.
WHAT DO PROSECUTION NEED TO PROVE?
In order to prove the offence of Burglary beyond a reasonable doubt, prosecutions must prove that a person charged:
- Entered a dwelling of another person;
- Entered that dwelling with the intent to commit an indictable offence;
- That the offence committed was an indictable offence; and
- That the dwelling was entered by break.
To prove these four (4) things occurred, prosecution may rely on statements of witnesses and their credibility, photographs from the scene (i.e. any damage to the property), CCTV Footage and more.
In matters whereby a person contests a charge of Burglary, it is the task of your legal representative to go through this evidence and provide you with advice in relation to the charge and how the matter would likely proceed.
There are defences available to those who have been charged with Burglary or Break and Enter.
Duress is one possible defence which may be relied upon by a defendant in circumstances where they were forced to act in a particular way by another person under the threat of death or serious harm.
There Was Consent to Enter the Premises
This defence may be used in circumstances where there is evidence that you have received either verbal or written consent that you may enter a particular residence. This defence would be further eventuated if there was evidence that the occupant of the residence did not physically or verbally resist you from entering the property when given the opportunity to do so.
No Intent to Commit an Indictable Offence
If you did not intend to commit an indictable offence within the dwelling when entering the property, after which the “offence” took place, a defence may be available to you. Prosecutions must prove that there was intent to commit an indictable offence before entry, because without intent, an unlawful entry may only amount to the lesser charge of trespass given the circumstances.
Not a Dwelling
No finding of guilt can be made if the premises that was entered by a person charged with this offence, does not meet the definition of a “dwelling” pursuant to the Act. A “dwelling” is defined under the Act as a building or structure which is occupied as a residence.
Defences can be shown and lead to a resolution of the matter through either Case Conferencing (Negotiations) with Prosecutions or taking the matter to Trial. Depending on your circumstances, one may be preferable over the other. If you are in a position where your circumstances may constitute a defence, we advise that you seek legal advice as soon as possible so that your Defence is given the best possible chance from the moment you are questioned or charged.
Dependent upon the circumstances of the Break and Enter you are charged with, your matter will either be dealt with in the Magistrates Court or the District Court. We advise that you get in contact with a lawyer to discuss where your matter falls.
A person convicted of this offence could receive any of the following penalties:
- Imprisonment (actual time, suspended sentence or immediate parole);
- Intensive Corrections Order;
- Community Service Order;
- Convictions recorded.
In determining what penalty, a Court imposes of a person charged and found guilty of an offence, will largely depend on the particular circumstances of each individual case, including the nature and seriousness of the offence, a person’s antecedents and character and also aspects of rehabilitation. We ask that you seek legal advice if you have been charged with this offence so that a solicitor can assess your individual circumstances to provide tailored advice on how to progress and eventually finalise your matter.