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Unlawful Entry (NT)

In the Northern Territory, there are a number of variations on the charge of unlawful entry depending on the alleged circumstances and the aggravating factors present. The maximum penalty that applies and the jurisdiction in which the matter will be finalised depend on the nature of the allegations. This article deals with unlawful entry offences in the NT.

Legislation

Unlawful entry is an offence under section 213 of the Criminal Code Act 1983.

Under that provision, any person who enters a building with the intent to commit an offence is guilty of an offence. The penalties that apply depend on the type of offence contemplated and other circumstances, such as whether it is nighttime and whether the offender is armed with a weapon.

Penalties

If a person unlawfully enters and building that is a dwelling house with the intent to commit summary offence, the maximum penalty that applies is imprisonment for two years.

If a person unlawfully enters a building with intent to commit an indictable offence that carries a maximum penalty of no more than three years imprisonment, the maximum penalty that applied is three years. If the building entered is a dwelling house, the maximum penalty is five years and if the dwelling is occupied at the tie, the maximum is seven years.

If a person enters a building with intent to commit any other indictable offence, the maximum penalty that applies is imprisonment for seven years, or if the building is a dwelling house, imprisonment for ten years.

If an unlawful entry offence is committed at night, the accused faces a maximum penalty of double the penalty that would otherwise apply.

If an offence is committed while armed with an offensive weapon, it carries a maximum penalty of imprisonment for 20 years, or if the building is a dwelling house, imprisonment for life.

Uncertainty about the offence intended

If a person is proven to have unlawfully entered a building, but it cannot be proven what category of offence they intended to commit, they will be found guilty of unlawful entry with intent to commit a summary offence (section 214).

Jurisdiction

When a person is charged with an unlawful entry offence in the NT and the maximum penalty that applies is ten years or less, the matter can be finalised in the summary jurisdiction if both the defence and the prosecution agree to this. This means that the matter will be dealt with in the Magistrates Court if the accused is an adult, or the Children’s Court if the accused is under 18.

When a person is charged with an unlawful entry offence that carries a maximum penalty of more than ten years imprisonment, the matter must be committed to the Supreme Court for finalisation. This means that the matter will have to go through a committal proceeding, where a magistrate will review the evidence in the prosecution case. If they consider that there is sufficient evidence to support a finding of guilt, the matter will be committed to the Supreme Court. If they do not, it will be dismissed.

Defences

When a person is charged with an unlawful entry offence, they may rely on a number of legal defence including the below.

Duress

A person is not guilty of unlawful entry if they committed the acts because another person was threatening them with death or serious harm if they did not comply. In order for the defence of duress to succeed, the threats made to the accused must have been sufficiently serious that a person of reasonable firmness and courage would have yielded.

Not a building

A person is not guilty of unlawful entry in the NT if the structure they entered was not a building within the meaning of the Criminal Code Act.

Section 1 of the Criminal Code Act defines a building as

“any structure complete or otherwise, not being a flimsy or insubstantial structure by the standards of the community to  which  the  owner  or  occupier of  it  belongs,  that,  except  in  the  3 cases  hereinafter  mentioned,  is  not  readily  moveable and that  is used  or  intended  for  the  occupation  of  man  or  his  animals  or the storage or shelter  of  his  goods. It includes a caravan,  ship  and  an erected tent used or intended for any such purpose.”

A person who entered a structure that is flimsy or insubstantial, such as a shed, will not be found guilty of unlawful entry.

Defending your property from unlawful entry

If a person’s home or business is unlawfully entered, they are entitled to use reasonable force to defend their property. This is consistent with the general principle that a person may act in self-defence when their life, liberty or property are threatened.

The amount of force that is justifiable in self-defence depends on the nature and extent of the threat that is being faced. What is reasonable will be assessed based on the threat the person believed they were facing even if this is different from the threat they were actually facing.

Lethal force may only be used in self-defence when a person is facing a threat of death or serious harm. If an intruder appears to intend to seriously harm or kill the occupants of a building, lethal force may be found to have been reasonable in self-defence. If only property is at stake, a lesser degree of force would be permissible in self-defence.

If you require legal advice or representation in any legal matter, please 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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