Burglary and aggravated burglary are serious indictable offences in Victoria, with aggravated burglary carrying one of the highest maximum penalties for a property-related offence. McMahon Criminal Defence Lawyers defends these matters from the Magistrates’ Court committal stage through to County Court trial, on fixed fees.
Burglary (Section 76)
A person commits burglary if they enter a building, or part of a building, as a trespasser with intent to steal, to assault a person inside, or to damage the building or property. “Building” includes an inhabited vehicle or vessel. The maximum penalty is 10 years’ imprisonment.
Aggravated Burglary (Section 77)
Burglary becomes aggravated in either of two situations:
- the accused had with them a firearm, imitation firearm, offensive weapon, explosive or imitation explosive at the time; or
- the accused entered knowing a person was present, or being reckless as to whether a person was present, in the building.
The maximum penalty for aggravated burglary is 25 years’ imprisonment. It is treated very seriously by the courts, particularly where it has the character of a home invasion.
What the Prosecution Must Prove
- the accused entered a building or part of a building;
- they did so as a trespasser (without permission or lawful right);
- they had the relevant intent (to steal, assault or damage) at the time of entry; and
- for aggravated burglary, the additional weapon or presence element.
Defending the Charge
- No trespass — the accused had permission or a right to enter;
- No intent at entry — the required intention was not present when the building was entered;
- Identification — frequently the key issue, often turning on forensic or CCTV evidence;
- Disputing the aggravating element — reducing aggravated burglary to burglary; and
- Negotiated resolution on charge and basis of plea.
Given the penalties, early advice is essential. Contact us as soon as possible, and if bail is in issue see our guide to bail. See also our main theft and dishonesty offences page.
Frequently Asked Questions
What is the difference between burglary and aggravated burglary?
Burglary (section 76) is entering a building as a trespasser with intent to steal, assault or damage, with a maximum of 10 years. Aggravated burglary (section 77) adds either that the accused was armed, or entered knowing or reckless that a person was present — and carries a maximum of 25 years.
What is the maximum penalty for aggravated burglary?
Aggravated burglary carries a maximum of 25 years’ imprisonment under section 77 of the Crimes Act 1958. It is one of the most serious property-related offences and is treated very seriously, especially where it amounts to a home invasion.
Do I have to actually steal something to be charged with burglary?
No. Burglary is complete on entering a building as a trespasser with the relevant intent — to steal, assault or cause damage. Whether or not anything was actually taken does not determine guilt, though it may be relevant to sentence.
Can a burglary charge be heard in the Magistrates’ Court?
Burglary can often be heard summarily in the Magistrates’ Court, particularly where the value involved is below the statutory threshold. Aggravated burglary, given its seriousness, more commonly proceeds to the County Court, though the path depends on the specific facts.
What is the main defence to burglary?
It depends on the facts, but identification is frequently the central issue, along with whether the accused entered as a trespasser and whether they had the required intent at the time of entry. For aggravated burglary, disputing the aggravating element can reduce the charge.
Get Expert Legal Advice — Fixed Fees, No Surprises
McMahon Criminal Defence Lawyers provides experienced, fixed-fee representation for this charge and all criminal matters, appearing at the Ballarat Magistrates’ Court and across Victoria. Contact us for a free, confidential initial consultation.
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