The group of offences loosely known as burglary is covered by Chapter 39 of the Criminal Code in Queensland. It deals with a range of offences involving entry of a dwelling or other premise with intent to steal or commit some other criminal offence.
Burglary is a very serious offence, which carries a maximum penalty of 14 years or life imprisonment, depending on the circumstances of the offence. Unlawful entries without the intent to commit a crime, are the less serious offence of trespass. They are dealt with under the Summary Offences Act (Section 11).
Elements of the offence
The main provision relating to ‘burglary’ as most people think of it, is Section 419. This section relates to entering or remaining in a dwelling with intent to commit an indictable offence. This may be theft, assault, rape or some other serious offence. The maximum penalty for burglary is 14 years imprisonment.
There are a number of aggravating factors that increase the maximum penalty for burglary from 14 years imprisonment to life imprisonment. Entering a dwelling by means of a ‘break’ is one such aggravating factor. A ‘break’ could be unlocking or even just opening a door, or a window. No damage need be done and no force need have been used to constitute a ‘break’. Other aggravating factors include the entry occurring at night, using or threatening violence, being armed with (or pretending to be armed with) a weapon, having one or more other persons with you, or damaging or trying to damage property. The maximum penalty is also increased to life imprisonment if a crime is actually committed.
Other burglary-type offences
Under Chapter 39, it is an offence to enter any other premises (ie not a dwelling) with intent to commit an indictable offence and this is punishable by a maximum of 10 years imprisonment (Section 421.)
It is an offence to be in possession of things used in connection with unlawful entries, such as housebreaking implements or to be armed with weapons with intent to break into premises (Section 425). This is punishable by a maximum of three years imprisonment.
It is an offence, punishable by a maximum of 14 years imprisonment, to unlawfully enter a vehicle with intent to commit an indictable offence (section 427).
It is a defence to burglary (as to other criminal offences) if the accused was forced to commit the offence by threats of serious harm or death. For example, if two people commit a burglary together but one of them is coerced to participate through threats of violence by the other, that person would have a valid defence.
No intent to commit a crime
It is a defence to burglary if the accused did not intend to commit a crime within the dwelling. Without such an intent, an unlawful entry would amount only to trespass.
Not a dwelling
If a person is charged under Section 419 and the premise entered does not meet the definition of a dwelling, no finding of guilt can be made. A dwelling is defined in the Criminal Code as a building or structure being occupied as a residence.
Burglary and self-defence
If someone attempts to burgle your home, it is lawful to use force to defend yourself and your property, but only to the extent that is reasonable in the circumstances (Section 267). This is consistent with the general criminal law principle that one may act in self-defence when a person’s life, liberty or property are being threatened.
What can reasonably be considered as defensive conduct depends on the circumstances of the offence and the level of threat being posed. What is reasonable will be assessed based on the danger that you believed you were facing, even if this is different to the level of danger you were actually facing.
Lethal force is only permissible in self-defence when a person reasonably believes that someone is in danger of being seriously hurt or killed. It is not permissible to use lethal force in defence of property.The use of lethal force may be found to have been self-defence if a burglar enters and appears to intend to seriously harm or kill its occupants. If a burglar appears to intend only to steal from the dwelling, a lesser use of force would be permissible in the attempt to expel the intruder and protect the property.