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7.5.6 – Home Invasion

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  1. Home invasion is an offence under the Crimes Act 1958 s77A.
  2. The offence can be committed in two alternative ways:

    These are addressed in turn below.

    Home invasion while armed

  3. Home invasion while armed has the following three elements:
    1. The accused committed burglary of a home;
    2. The accused entered the home in company with one or more other persons; and
    3. At that time the accused had a firearm, imitation firearm, offensive weapon, explosive or imitation explosive with him or her.

    The accused committed burglary of a home

  4. The first element that the prosecution must prove is that the accused committed burglary of a home (Crimes Act 1958 s77A(1)(a)).
  5. The prosecution must prove that the accused:
    1. Entered a home; and
    2. Did so as a trespasser; and
    3. Intended to:
      1. Steal something from the home; 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 home; or
      2. Damage to the home or to property in the home (Crimes Act 1958 s77A(1)(a)).
  6. Burglary explains these requirements in more detail. The difference between burglary and home invasion for the purpose of this element is that burglary applies to any building, whereas home invasion is limited to a ‘home’.
  7. Home is defined in Crimes Act 1958 section 77A(5) as:

    any building, part of a building or other structure intended for occupation as a dwelling and includes the following –

    any part of commercial or industrial premises that is used as residential premises;

    a motel room or hotel room or other temporary accommodation provided on a commercial basis;

    a rooming house within the meaning of the Residential Tenancies Act 1997;

    a room provided to a person as accommodation in a residential care service, hospital or any other premises involved in the provision of health services to the person;

    a caravan within the meaning of the Residential Tenancies Act 1997 or any vehicle or vessel used as a residence.

    The accused entered the home in company with one or more persons

  8. The second element the prosecution must prove is that the accused entered the home ‘in company’ with one or more other persons (Crimes Act 1958 s77A(1)(b)).
  9. The phrase ‘in company’ rarely appears in Victorian legislation, but has been considered in other states which contain offences or aggravating factors of offending ‘in company’.
  10. The following sections explain the meaning of ‘in company’ as it has been developed in other States, while recognising that such principles have not yet been considered in relation to Victorian legislation.
  11. The element of company requires three key components:
  12. Proof of a common purpose requires an express or implied agreement or understanding to achieve an agreed end (Markou v R [2012] NSWCCA 64 at [28]).
  13. It is not necessary that the secondary parties physically assisted in the commission of the offence. It is sufficient if they are present so that the victim is confronted by the combined force of two or more people and the secondary party is in a position to assist if necessary (R v Brougham (1986) 43 SASR 187 at 191; R v Galey [1985] 1 NZLR 230; WA v Dick [2006] WASC 81).
  14. Where the victim is aware of the presence of the secondary parties and is confronted with that combined force, it is not necessary to show that the secondary parties actually intended to assist (R v Leoni [1999] NSWCCA 14 at [16]-[20]; R v Villar & Zugecic [2004] NSWCCA 302 at [68]).
  15. In some cases, it is not necessary that the victim of the offence know about the presence of the secondary parties. However, in that situation, the secondary parties must be physically present and intending to assist the accused if necessary (R v Leoni [1999] NSWCCA 14 at [16]-[20]). However, the concept of assistance is flexible and is not limited to physical assistance (see FP v R [2012] NSWCCA 182 at [140]).
  16. Physical presence is an elastic concept. It depends on the layout, geography and circumstances of the case. The question is whether the secondary parties remain in a location where they are able to exercise a coercive effect, either by continuing to intimidate the victim, or being ready and able to assist the accused if necessary (R v Button & Griffen (2002) 54 NSWLR 455 at [123]-[125]).
  17. Despite the flexibility of the concept of physical presence, a person standing lookout, an accessory before the fact, or a getaway driver, is not physically present for the purpose of offending in company (R v Button & Griffen (2002) 54 NSWLR 455 at [120]; R v Brougham (1986) 43 SASR 187 at 191. See also WA v Dick [2006] WASC 81 at [33]-[38]).
  18. Based on these cases, the approach in this charge book is that this element requires proof that at least one other person was ‘involved in the commission of the offence’ for the purpose of Crimes Act 1958 s323, was physically present when the offence was committed and either directly engaged in the offence, intended to embolden or reassure the accused if necessary or was observed by the victim so that the victim was confronted by a combined presence.
  19. For information on when a person is ‘involved in the commission of an offence’ see Statutory Complicity for more information.
  20. It is not necessary that the purported co-offender has been prosecuted for or found guilty of this offence in order to sustain the conviction of the accused (Crimes Act 1958 s77A(4)).

    The accused was armed

  21. The third element that the prosecution must prove for this form of home invasion is that, at the time the accused committed the home invasion, 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 s77A(1)(c)).
  22. For more information on these items, see Aggravated Burglary.

    The accused had the article "with" him or her

  23. 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 home invasion (Crimes Act 1958 s77A(1)(c)).
  24. A person will have had the article "with" him or her if, at the time of the home invasion, 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).
  25. 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).
  26. 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).
  27. 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).
  28. 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 home invasion

  29. 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).
  30. 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 s77A. However, this conclusion is not wholly certain (see DPP v Woodward [2006] VSC 299).
  31. If the phrase "has with him" is interpreted in the same way for s77A as for s75A, it will create an implied requirement that the accused possessed the article for the purpose of the home invasion.
  32. It is likely that the "purposes" of home invasion will be determined by reference to the elements of the offence of home invasion. They are therefore unlikely to be the same as the purposes of robbery discussed in Armed Robbery.
  33. It is likely that the "purposes" of home invasion will vary according to the secondary offence that the accused is alleged to have intended to commit. This means that:
  34. The accused will have possessed an article for the purpose of the home invasion if s/he intended to use it for that purpose, even if it was not actually used (R v Nguyen [1997] 1 VR 551).
  35. It is the accused’s purpose or intention at the time of the entry that matters:

    Home invasion where a person was present

  36. Home invasion where a person was present has the following three elements:
    1. The accused committed burglary of a home;
    2. The accused entered the home in company with one or more other persons; and
    3. A person was present in the home (Crimes Act 1958 s77A).

    The accused committed burglary

  37. The first element that the prosecution must prove is that the accused committed burglary of a home (Crimes Act 1958 s77A).
  38. See above for a brief outline of the elements of burglary. See Burglary for more information concerning each of these elements.

    Entered the home in company with one or more other persons

  39. The second element is common to both forms of home invasion. See above for a discussion of this element (see Crimes Act 1958 s77A).

    A person was present

  40. The third element that the prosecution must prove for this form of the offence is that a person (other than the person the accused entered the home in company with) was present in the home at any time while the accused was present (Crimes Act 1958 s77A(1)(c)(ii)).
  41. The drafting of this provision indicates that the element may be satisfied either where the third person was present at the time of entry, or arrives while the accused is present in the home as a trespasser.
  42. There is no fault element associated with this element. It does not matter whether the accused knew that there was or would be another person in the home (Crimes Act 1958 s77A(2)). This distinguishes this form of the offence from aggravated burglary (compare Crimes Act 1958 s77).

    Agreement about basis of culpability

  43. In some cases the prosecution may seek to prove home invasion by presenting both forms of offence in the alternative. The prosecution is likely to do this by alleging the two forms of offence in the one count, relying upon Criminal Procedure Act 2009 Schedule 1 Clause 3(3).[1]
  44. In relation to aggravated burglary, it has been held that the two forms of that offence are proven by evidence of substantially different facts and the jury must be unanimous about the basis of culpability (R v Secombe [2010] VSCA 58).
  45. It there therefore highly likely that the same principle will apply to home invasion.
  46. 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).
  47. See Unanimous and Majority Verdicts for further information about this issue.

    Notes

[1] 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: 9 March 2017

In This Section

7.5.6.1 - Charge: Home Invasion (While Armed)

7.5.6.2 – Checklist: Home Invasion (While Armed)

7.5.6.3 - Charge: Home Invasion (Person Present)

7.5.6.4 – Checklist: Home Invasion (Person Present)

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

7.5.5 - Aggravated Burglary

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