Burglary in Brisbane

Burglary in Brisbane and elsewhere in Queensland is the offence of entering or being in the dwelling of another with the intent of committing a crime. It is governed by section 419 of the Criminal Code 1899 and can attract a penalty of up to 14 years imprisonment. Longer maximum penalties apply where the alleged offence is committed under circumstances of aggravation (outlined below). This article outlines the offence of burglary in Brisbane and the rest of Queensland.

What is burglary in Brisbane?

Under section 419 of the Criminal Code, a person who enters or is in the dwelling of another with intent to commit an indictable offence in the dwelling commits a crime. The maximum penalty for this is 14 years imprisonment, though this is increased to life where there are circumstances of aggravated such as the use of a weapon, damage to property or where the offence occurs at night.

The term “dwelling” has a wide meaning under the Act and includes a building or even part of a building used as a residence, regardless if whether it is sometimes uninhabited.

A burglary is different from a trespass in that to be guilty of burglary, a person must have intended to commit an indictable offence while inside the dwelling. The offence of trespass requires only that a person entered or remained on a property without authority to do so.

A person who is charged with burglary in Brisbane is often also charged with other offences in relation to the same course of conduct – such as assault, rape or wilful damage of property.

Aggravated offence

A burglary is aggravated if one or more of the following circumstances of aggravation exists:

  • the offence occurs at night;
  • the offender uses or threatens to use violence;
  • the offender is, or pretends to be, armed with a dangerous or offensive weapon, instrument or noxious substance;
  • the offender is in company with one or more others;
  • the offender damages or attempts or threatens to damage property;
  • an indictable offence is committed whilst in the dwelling.

The maximum penalty that applies for an aggravated burglary is imprisonment for life.

What the Police Must Prove

In order for a court to find a person guilty of burglary in Brisbane, the prosecution must prove beyond a reasonable doubt that:

  • that they entered the dwelling, or were in the dwelling of another;
  • that they entered or remained there with the intent to commit an offence; and
  • that the offence they intended to commit was an indictable offence.

There must be evidence that the accused intended to commit an indictable offence.

Possible Defences for Burglary

A person charged with burglary may defend the charge by relying on one of the following legal defences.

Lack of intent

A person is only guilty of burglary if they entered the dwelling with the intent of committing an indictable offence. If the prosecution cannot prove that this intent existed, the accused must be found not guilty.

Duress

A person is not guilty of a criminal offence if they carried out the act only because they were made to fear that their life would be in danger if they did not give in to another person’s threats. The defence of duress may be relied on in relation to a charge of burglary in Brisbane. For this defence to succeed, the accused must show that an actual threat of death or serious injury was made and that they carried out the acts only because of the threat.

Jurisdiction

A charge of burglary in Brisbane or elsewhere in Queensland can be finalised as a summary offence in the Magistrates Court or the Children’s Court (where the accused is under 18) with the consent of both the defence and the prosecution where there are no circumstances of aggravation alleged. In other cases, burglary matters must be dealt with on indictment in the District Court.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.

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