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.
Burglary Offences
The offence of burglary is a serious criminal offence in Western Australia and if carried out in circumstances of aggravation, an offender could be facing up to 20 years imprisonment.
It's imperative to seek legal advice from an experienced criminal defence lawyer as soon as possible if you or a loved one has been charged with this crime.
Below we outline the criminal offence of burglary in Western Australia, including definitions, the elements of the offence that must be proven to be convicted, maximum penalties and aggravating factors that may increase the sentence imposed if found guilty.
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 the 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 the following elements:
- That the accused entered or was in that place of another person;
- That the accused did not have the consent of the person to be there;
- 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:
- That the accused entered or was in that place of another person;
- That the accused did not have the consent of the person to be there;
- That the accused committed an offence while in the place.
Aggravated Burglary
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:
- Is or pretends to be armed with a dangerous or offensive weapon?
- Is or pretends to have an explosive substance?
- Is there a company of another person or persons?
- Does bodily harm to any person?
- Threatens to kill or injure any person;
- Detains any person; or
- Immediately before the offence knew or ought to know that there were other people in that place (other than any co-offenders).
The latter circumstance amounts to Home Burglary where the owner or occupier were at home during the burglary.
Which Court Will Hear My Charge?
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 of a Burglary offence, the likelihood of serving a term of imprisonment is high irrespective of the court that hears and determines the matter.
Penalties for a Burglary Offence - 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.
- 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 Australia 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.
Aggravated burglary involves committing a burglary with additional circumstances that intensify the seriousness of the offence. In Western Australia, this offence can be charged with various aggravating factors.
For instance, entering a neighbour's house through an unlocked door at midnight constitutes burglary, but if it's done while being in the company of others or being armed, it escalates to aggravated burglary. Similarly, climbing through a house window with a baseball bat in hand also qualifies as a burglary, but if bodily harm is inflicted on any person during the burglary, the offence becomes aggravated.
Moreover, damaging your neighbour's property, like their television, can add to the severity of the burglary charge. Pretending to possess an explosive substance or threatening to harm or kill any person during the burglary can also elevate the offence to aggravated burglary. These aggravating circumstances highlight the increased danger, violence, and threat to personal safety associated with such crimes, leading to more severe legal consequences for those involved.
Mandatory Sentencing
Convictions for serious sexual or physical assaults perpetrated during an aggravated home burglary will carry a mandatory 75 per cent of the maximum penalty.
Related Offences
Other criminal offences related to stealing and burglary include:
- Theft/Stealing offences- Stealing is committed when an offender fraudulently takes anything capable of being stolen or fraudulently converts it to their own use or the use of another person. Maximum penalties for a stealing offence vary depending on a number of factors, including whether it was an indictable offence, the value of the goods stolen, whether violence was used or threatened, and many more factors.
- Robbery offences - an indictable offence that combines theft and violence (a composite offence). A robbery offence occurs when an offender steals property and, at the same time or immediately before or after, uses or threatens violence to get the stolen item or prevent resistance. The maximum penalty depends on the severity, ranging from 14 years imprisonment to life imprisonment.
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 to have the charges remain in the Magistrates Court.
Have you or someone you know been charged with Burglary or another legal matter? To secure the services of an experienced criminal lawyer who will provide straightforward and no-nonsense advice and the highest quality court representation call Andrew Williams Criminal Law Offices on (08) 9278 2575.
