Stealing is defined in law as something that can can be stolen (cannot steal air for example), taking that something from the true owner with no intention of returning that something to the owner. These are what lawyers refer to as the elements of the offence. All a bit long winded but essentially means taking someone else’s property with no intention of returning it.
The criminal offence of burglary is made out when someone enters premises without the consent of the owner or occupier with intent to commit a criminal offence. Section 410 of the Criminal Code sets out the offence of burglary. The usual offence associated with burglary, the intent to commit part, is stealing.
In Western Australia the offence of burglary can be preferred with aggravating circumstances, such as when being in company with others, being armed, detaining a person during the burglary, doing bodily harm to any person, pretending to be in possession of an explosive substance, or threatening to kill or harm any person.
In cases when the owner or occupier is home at the time of the burglary, the offence is a home burglary. This is a very serious species of burglary if the prosecution can prove beyond reasonable doubt that you knew or ought to have known that there was someone home. The test of whether you knew or ought to have known is subjective in the former case, and objective in the latter case.
Sentences in Western Australia
The offence of burglary per se is a very serious offence indicated by the sentences. If this offence is an aggravated home burglary then the maximum term of imprisonment is 20 years. If the offence is not a home burglary but is committed in circumstances of aggravation the maximum term is also 20 years. If the offence is a home burglary not committed in circumstances of aggravation the maximum term is 18 years, and in any other case 14 years.
History of Home Burglary Offence
As mentioned above, home burglary is a very serious offence and has been regarded so in the criminal jurisdiction for 100’s of years. According to William Blackstone’s Commentaries: “… the law of England has so particular and tender a regard to the immunity of a man’s house, that it stiles it his castle, and will never suffer it to be violated with immunity”. A home burglary is a home invasion — a violation of a person or family’s home that should, in every respect and at all times, be a safe place.
A Criminal Law Case Example
There are cases of course where outwardly the offence of home burglary appears to be made out, but upon a closer look at the facts something entirely different emerges. Take for example one of our cases at criminal-lawyer-perth where the relationship between a de facto couple whom I will refer to as Joe and Sue (not their real names) soured following a verbal altercation one evening. Joe left the house, which they had been renting for about a year, and went to stay with his mate William (also a fictitious name).
Two days later Joe along with William returned to the house to collect clothing and other personal items. It was at night and Sue was at home. Joe could not locate his house key and decided to leave and come back another day. William said he could gain entry by forcing a sliding door open otherwise going there would have been a waste of time. Joe managed to get the sliding door open and entered the house only to be confronted by Sue. A scuffle broke out and in an attempt to push Sue away and leave William brushed the right side Sue’s face, causing no injury. All this time Joe remained outside the house. Neighbours heard shouting and the police were called. William was later charged with Aggravated Burglary and came to criminal-lawyer-perth for legal advice and representation. The matter was eventually settled with the police withdrawing the charge once all the facts were known including a supporting statement given to the police by Sue.
Getting Legal Advice
The point here is that it does not take much to be charged with aggravated home burglary. If you have been charged call us now to discuss your case.
The above represents information only and is not to be taken as providing legal advice. It is purposely written in non-technical legal language in order to be understood by a wide audience of people from all backgrounds. If you want to know more about this topic you are advised to visit our website and contact us or call one of our criminal lawyers directly on 0422656589, or speak to a lawyer of your choosing.