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7.5.5 - Aggravated Burglary

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  1. Aggravated burglary is an offence under the Crimes Act 1958 s77.
  2. The offence can be committed in two alternative ways:

    These are addressed in turn below.

    Aggravated burglary while armed

  3. Aggravated burglary while armed has the following two elements:
    1. the accused committed burglary; and
    2. at that time the accused had a firearm, imitation firearm, offensive weapon, explosive or imitation explosive with him or her.

    The accused committed burglary

  4. The first element that the prosecution must prove is that the accused committed burglary (Crimes Act 1958 s77(1)(a)).
  5. The accused will have committed burglary if he or she:
    1. entered a building (or part of a building); and
    2. did so as a trespasser; and
    3. intended to:
      1. steal something from the building or part in question; or
      2. commit an offence punishable by imprisonment for a term of five years or more involving either:
        1. an assault to a person in the building or part in question; or
        2. damage to the building or to property in the location (Crimes Act 1958 s76).
  6. See Burglary for further information concerning each of these requirements.

    The accused was armed

  7. The second element that the prosecution must prove (if it is alleged that the accused committed aggravated burglary while armed) is that, at the time the accused committed the burglary, he or she had one of the following five articles with him or her:
    1. a firearm;
    2. an imitation firearm;
    3. an offensive weapon;
    4. an explosive; or
    5. an imitation explosive (Crimes Act 1958 s77(1A)).

    Specified articles

    Firearms

  8. The term "firearm" is defined to have the same meaning as provided in section 3 of the Firearms Act 1996 (Crimes Act 1958 s77(1A)).
  9. That provision defines firearms broadly to include devices that are:
  10. It does not matter whether the device is assembled or disassembled, complete or incomplete, operable or inoperable (Firearms Act 1996 s3 "firearm").
  11. The definition of "firearm" excludes:

    Imitation firearms

  12. An "imitation firearm" is anything which has the appearance of being a firearm, whether or not it is capable of being discharged (Crimes Act 1958 s77(1A)).
  13. As the definition of "firearm" in section 3 of the Firearms Act 1996 extends to devices which "have the appearance of" a firearm, the definitions of "firearm" and "imitation firearm" overlap.

    Offensive weapons

  14. An "offensive weapon" is any article which:
  15. Where the accused is charged with aggravated burglary as a secondary party and the accused does not have the article in question, the fourth limb of the definition likely requires proof that the accused intended that the co-offender would use the article for the purpose of causing injury or incapacitation, or was aware that it was probable that the co-offender would use the article for that purpose (see Crimes Act 1958 s323(1) and Kargar v R [2018] VSCA 148, [42]).

    Articles made for causing injury or incapacitation

  16. An article is "made for use" in causing injury or incapacitation to a person if it is normally used only for that purpose (Wilson v Kuhl [1979] VR 315).
  17. Examples of this kind of article include knuckle dusters and sawn-off shotguns. Carving knives and walking sticks are not articles of this kind (Wilson v Kuhl [1979] VR 315).
  18. Articles that fall within this category will be offensive weapons regardless of how the accused intends to use them (Wilson v Kuhl [1979] VR 315).

    Articles adapted for the use of causing injury of incapacitation

  19. An otherwise inoffensive article is "adapted" for the use of causing injury or incapacitation if it is physically modified to transform it into a dangerous or threatening object (R v Nguyen [1997] 1 VR 551).
  20. A glass bottle may therefore become an offensive weapon if it is smashed to produce jagged edges (R v Nguyen [1997] 1 VR 551).
  21. An article will not be "adapted" into an "offensive weapon" merely by being handled or presented aggressively. It must undergo some kind of physical transformation (R v Nguyen [1997] 1 VR 551). [2]

    Articles the accused intends or threatens to use to cause injury or incapacitation

  22. An unmodified and otherwise inoffensive article may become an "offensive weapon" if it is carried (or kept available) by a person who intends or threatens to use it to injure or incapacitate (Crimes Act 1958 s77(1A); Wilson v Kuhl [1979] VR 315; R v Nguyen [1997] 1 VR 551).
  23. Kitchen knives, walking sticks and silk stockings carried with aggressive intent are examples of articles that fall into this category (Wilson v Kuhl [1979] VR 315; R v Nguyen [1997] 1 VR 551).
  24. An item as innocuous as a half-full plastic drink bottle, when wielded in a manner capable of causing injury, can also fall into this category (R v Nguyen [1997] 1 VR 551).
  25. It is not necessary to prove that the accused’s original intention in carrying the article was to use it offensively. It is sufficient if the prosecution can prove that the accused had that intention at the time of the burglary (R v Nguyen [1997] 1 VR 551).
  26. An accused’s threat to use an article to cause injury or incapacitation will not qualify the article as an offensive weapon if the victim knows the threat is fanciful (R v Nguyen [1997] 1 VR 551).

    Explosives and imitation explosives

  27. An "explosive" is any article that is:
  28. An "imitation explosive" is any article which might reasonably be taken to be, or to contain, an explosive (Crimes Act 1958 s77(1A)).

    The accused had the article "with" him or her

  29. For this element to be met, the accused must have had one of the specified articles "with" him or her at the time of the burglary (Crimes Act 1958 s77(1)(a)).
  30. A person will have had the article "with" him or her if, at the time of the burglary, he or she had the article either on his or her person, or readily available for use (R v Hartwick (1985) 17 A Crim R 281).
  31. This element will only be met if the accused knew that he or she had the article with him or her, or available for use (R v Kolb & Adams 14/12/1979 CCA Vic; R v Cugullere [1961] 1 WLR 858).
  32. A person does not have an article "with" him or her if it is possessed in such a way that it cannot be used (e.g., if it is concealed on his or her person in a sealed package)(R v Kolb & Adams 14/12/1979 CCA Vic; R v Pawlicki [1992] 3 All ER 902).
  33. However, an instrument may be "used" by doing no more than drawing attention to its existence (R v Kolb & Adams 14/12/1979 CCA Vic).
  34. The ordinary principles of criminal complicity apply to this offence. This means that this element will be met if an accomplice, acting in concert with the accused, had the article "with" him or her (R v Hartwick (1985) 17 A Crim R 281; R v Khammash (2004) 89 SASR 488). See Part 5: Complicity for further information about the principles of criminal complicity.

    Possession must be for the purpose of the burglary

  35. In relation to the offence of armed robbery (Crimes Act 1958 s75A), the expression "has with him" has been held to create an implied requirement that the accused possessed the article for the purpose of the robbery (R v Kolb & Adams 14/12/1979 CCA Vic. See Armed Robbery).
  36. It is likely that the interpretation of the phrase "has with him" in s75A will guide the interpretation of this phrase in its use in s77. However, this conclusion is not wholly certain (R v Munro [2006] VSCA 94; DPP v Woodward [2006] VSC 299]).
  37. If the phrase "has with him" is interpreted in the same way for s77 as for s75A, it will create an implied requirement that the accused possessed the article for the purpose of the burglary.
  38. It is likely that the "purposes" of burglary will be determined by reference to the elements of the offence of burglary. They are therefore unlikely to be the same as the purposes of robbery discussed in Armed Robbery.
  39. It is likely that the "purposes" of burglary will vary according to the secondary offence that the accused is alleged to have intended to commit. This means that:
  40. The accused will have possessed an article for the purpose of the burglary if s/he intended to use it for that purpose, even if it was not actually used (R v Nguyen [1997] 1 VR 551).
  41. It is the accused’s purpose or intention at the time of the entry that matters:

    Aggravated burglary where a person was present

  42. Aggravated burglary where a person was present has the following three elements:
    1. the accused committed burglary; and
    2. a person was then present in the building or part of the building; and
    3. the accused knew that a person was then so present, or was reckless as to whether or not a person was then so present (Crimes Act 1958 s77).

    The accused committed burglary

  43. The first element that the prosecution must prove is that the accused committed burglary (Crimes Act 1958 s77).
  44. See above for a brief outline of the elements of burglary. See Burglary for more information concerning each of these elements.

    A person was present

  45. The second element that the prosecution must prove (to prove this form of the offence) is that a person was present in the building or relevant part of the building at the time of the burglary (Crimes Act 1958 s77(1)(b)).

    The accused’s mental state

  46. The third element the prosecution must prove (to prove this form of the offence) is that, at the time of the burglary, the accused either:
  47. An accused is reckless about whether or not a person is present in a location if s/he believes that a person is probably present (R v Verde [2009] VSCA 16; R v Kalajdic [2005] VSCA 160; R v Campbell [1997] 2 VR 585; R v Nuri [1990] VR 641).
  48. It is not sufficient that the accused knew that it was possible that a person was present in the building or unauthorised part of the building at the time of the burglary (See R v Verde [2009] VSCA 16; R v Kalajdic [2005] VSCA 160; R v Campbell [1997] 2 VR 585; R v Nuri [1990] VR 641).
  49. Satisfaction of this element may depend on the way in which the presentment is framed. For example:

    Agreement about basis of culpability

  50. In some cases the prosecution may seek to prove aggravated burglary by presenting both forms of aggravation in the alternative. The prosecution is likely to do this by alleging the two forms of aggravation in the one count, relying upon Crimes Act 1958 Schedule 6 Rule 5. [3]
  51. The alternative elements for the two forms of aggravated burglary are proven by evidence of substantially different facts. They do not present a case where the jury verdict depends on different assessments of the same facts. It is therefore relatively clear that these offences should be treated as analogous to culpable driving rather than murder (R v Walsh (2002) 131 A Crim R 299).
  52. It follows that where the jury are asked to consider more than one basis of culpability for aggravated burglary, they must agree on the mode of culpability before they can find the accused guilty. It is not just the ultimate verdict that the jury must agree upon, but the form of offence which has been committed (e.g. aggravated burglary "while armed" or aggravated burglary "where a person was present") (R v Beach (1994) 75 A Crim R 447; R v Ciantar (2006) 16 VR 26; R v Secombe [2010] VSCA 58).
  53. The jury should give a single verdict, and they should not be asked to identify the basis of their verdict (R v Ciantar (2006) 16 VR 26).
  54. See Unanimous and Majority Verdicts for further information about this issue.

 

Notes

[1] While these articles will not be firearms, they may still be "offensive weapons" for the purposes of this offence.

[2] However, a mundane item that is handled aggressively may be an "offensive weapon" due to its intended or threatened use (see below).

[3] However it is not unlawful to allege the alternative forms of culpability in separate counts. See R v Davidson; R v Konestabo [2008] VSCA 188.

 

Last updated: 22 August 2018

In This Section

7.5.5.1 - Charge: Aggravated Burglary While Armed (Short)

7.5.5.2 - Charge: Aggravated Burglary While Armed

7.5.5.3 - Checklist: Aggravated Burglary While Armed

7.5.5.4 - Charge: Aggravated Burglary Where Person Present (Short)

7.5.5.5 - Charge: Aggravated Burglary Where Person Present

7.5.5.6 - Checklist: Aggravated Burglary Where Person Present

7.5.5.7 - Charge: Aggravated Burglary - Combined Bases

7.5.5.8 - Checklist: Aggravated Burglary - Combined Bases

See Also

7.5 - Dishonesty and Property Offences

7.5.1 - Theft

7.5.2 - Robbery

7.5.3 - Armed Robbery

7.5.4 - Burglary

7.5.6 – Home Invasion

7.5.7 – Aggravated Home Invasion

7.5.8 – Carjacking

7.5.9 – Aggravated Carjacking

7.5.10 - Handling Stolen Goods

7.5.11 - Recent Possession

7.5.12 - Obtaining Property By Deception

7.5.13 - Obtaining a Financial Advantage By Deception

7.5.14 - Making or Using a False Document

7.5.15 - Blackmail

7.5.16 - Criminal Damage

7.5.17 - Criminal Damage Intending to Endanger Life

7.5.18 - Criminal Damage With a View to Gain

7.5.19 - Arson

7.5.20 - Arson Causing Death

7.5.21 - Intentionally or Recklessly Causing a Bushfire