Both trespass and burglary have to do with property (land and buildings) and the person. It is vital that the distinction between trespass and burglary is known because in terms of penalty, someone charged with trespass usually receives a fine whereas someone charged with burglary – especially if the premises was a home and occupied at the time of entry and the offender knew or ought to have known that the premises were occupied then it is not unusual for a term of immediate imprisonment to be handed down.
What is Trespass?
What then is the factual difference between the two? Trespass is entering and remaining on a person’s land without their consent. Consent can be implied or explicit. Implied consent is where for example, a delivery driver walks up to the front door of a house and delivers a parcel. Explicit consent is where the owner or occupier of the land invites, say a lawn-mowing contractor, to mow the lawn. Both implied consent and explicit consent can be withdrawn at any time by the owner or occupier of the premises.
What is Burglary?
What then is burglary? Burglary is entry to a building – offices, factory or a home without consent of the owner or occupier with intent to commit an offence. The part about intent to commit an offence… is the operative act that transforms a trespass into a burglary.
We have defenced several cases where, for example, separating couples before the Family Court of WA are squabbling over who gets to see the children and when. We have instances where the father or mother goes to pick up the children and once inside the house the parents get into a heated argument. A physical altercation ensues with say the mother calling off the arrangement allowing the children to go home and spend time with the father. The father in turn removes the children from the house places them in his car and goes home. Within an hour the police are at the father’s house questioning him over what happened. Later he is charged with burglary with facts alleging the father assaulting the mother or caused damage to the property.
Of course there are often defences to both the physical altercation and removal of the children and damage to property. We have defended both fathers and mothers charged with burglary in similar facts to the above. What is vitally important is that if you have been charged with burglary whatever the alleged circumstances it is in your interest to speak to an experienced criminal defence lawyer.