There are a range of offences in Victoria that involve entering a home, place or premises without authority. These range from very serious offences such as aggravated burglary and home invasion to relatively trivial ones. An owner or occupier of land or premises is allowed to forcefully eject a person who enters unlawfully. However, it is only permissible to use as much force as is reasonably necessary in the circumstances.
Entering a place without authority
Under Section 9(1)(e ) of the Summary Offences Act 1966, a person commits an offence if they enter a private place or a scheduled public place without authority from the owner or occupier or for a legitimate purpose. Scheduled public places include public schools, residential services and treatment facilities, mental health services.
Entering a place without authority is commonly referred to as trespass. The maximum penalty for such an offence is a fine of 25 penalty units or imprisonment for six months. While prison sentences are sometimes handed down for these offences, it is common to receive a sentence that is a fine or another non-custodial penalty.
Trespass is also a civil wrong, for which a person can be sued.
A number of defences are available to a charge of entering a place without authority.
Honest and reasonable mistake
It is a defence if the accused held an honest and reasonable belief that the place was not a private place or a scheduled public place.
Sudden and extraordinary emergency
It is a defence if the accused entered because of a sudden and extraordinary emergency, such as escaping from an assault.
Lack of intent
It is a defence if the accused did not enter the place intentionally.
It is a defence if the accused had the lawful authority of the owner or occupier to enter the place.
Under Section 76 of the Crimes Act 1958, a person commits burglary if they enter a building as a trespasser with the intent to steal, or to commit an offence involving an assault or damage to property that is punishable by imprisonment for five years or more. Burglary is a serious offence punishable with a maximum of 10 years imprisonment.
Under Section 77 of the Crimes Act 1958, a person commits an aggravated burglary if they commit a burglary whilst in possession of a firearm, offensive weapon or explosive or while there was a person present in the building entered and the accused knew or were reckless as to whether there was a person present. Aggravated burglary is punishable by a maximum of 25 years imprisonment.
Under Section 77A of the Crimes Act 1958, a person commits the offence of home invasion if they enter a home as a trespasser with intent to steal, or to commit an offence involving an assault or property damage that is punishable by imprisonment for five years or more AND the person is in company with one or more other persons and the offender:
- Has a firearm, offensive weapon or explosive with them; or
- There is a person present in the home
Home invasion is punishable by a maximum of 25 years imprisonment.
Aggravated home invasion
If a person commits home invasion whilst in company with two or more other persons, the person commits aggravated home invasion (section 77B).
What can you do?
If someone enters your land, premises, building or home unlawfully, you may use force to eject them. However, you must only use as much force as is reasonably necessary to defend yourself or your property. The amount of force that is necessary when a person is trespassing on your land will be much less than in a home invasion where the offender is armed. If you use more than reasonable force to eject a trespasser, you may be charged with an offence.
If you require legal advice or representation in relation to a criminal matter or any other legal matter, please contact Go To Court Lawyers.