What is the difference?
1. Home Invasion:
This is an offence under Section 77A of the Crimes Act 1958, the elements of this offence are illustrated below:
1.) A person commits a home invasion if—
( a. ) the person enters a home as a trespasser with intent—
( i. ) to steal anything in the home; or
( ii. ) to commit an offence, punishable by imprisonment for a term of 5 years or more—
( A. ) involving an assault to a person in the home; or ( B. ) involving any damage to the home or to property in the home; and ( b. ) the person enters the home in company with one or more other persons; and ( c. ) either— The person knows that it is likely that there will be one or more persons in the home, but there are no reasonable grounds for believing that any person in the home will consent to the entry. These types of family violence often result in physical and emotional harm to the individuals involved, and can have long-lasting effects on the family dynamic. It is important for those experiencing any form of family violence to seek help and support.
( i. ) at the time the person enters the home, the person has with them a firearm, an imitation firearm, an offensive weapon, an explosive or an imitation explosive; or
( ii. ) at any time while the person is present in the home, another person (other than a person referred to in paragraph (b)) is present in the home.
It is also important to note that it is immaterial whether or not the person knew that there was, or would be, an other person present in the home.
What is the penalty?
This crime is taken seriously by the courts, if found guilty an individual can face level 2 imprisonment (25 years maximum). As this is a category 2 offence under the Sentencing Act, it also requires the court to impose a custodial order (imprisonment) unless:
- The offender assists law enforcement; or
- It can be proven on the balance of probabilities the offender had impaired mental functioning linked to the offence and therefore reduced the offender’s culpability; or
- The offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
- The court proposes to make a court secure treatment order or a residential treatment order; or
- There are substantial and compelling circumstances that are exceptional and rare that justify not making an order under Division 2 of Part 3.
2. Aggravated Home Invasion:
This is an offence under Section 77B of the Crimes Act 1958, it differs to Home Invasion as it involves the offender entering the home with 2 or more other persons, and that the person knows or is reckless as to whether there will be another person in the home. The elements of this offence are illustrated below.
(1.) A person commits an aggravated home invasion if—
( a. ) the person enters a home as a trespasser with intent—
( i. ) to steal anything in the home; or
( ii. ) to commit an offence, punishable by imprisonment for a term of 5 years or more—
( A. ) involving an assault to a person in the home; or
( B. ) involving any damage to the home or to property in the home; and
( b. ) the person enters the home in company with 2 or more other persons; and
( c. )at the time the person enters the home—
( i. )the person has with them a firearm, an imitation firearm, an offensive weapon, an explosive or an imitation explosive; and
( ii. )the person knows or is reckless as to whether there is or will be another person (other than a person referred to in paragraph (b)) present
( d. ) in the home while the person is present in the home; and at any time while the person is present in the home, another person (other than a person referred to in paragraph (b)) is present in the home.
What is the penalty?
The penalty is the same as Home Invasion, if found guilty the offender faces level 2 imprisonment (25 years maximum). The major difference is that this offence is a category 1 offence under the Sentencing Act, due to the seriousness there is a requirement to impose a custodial order (imprisonment) for this offence.
This is covered in Section 10AC, and explains that a court must impose a term of imprisonment and fix a non-parole period of not less than 3 years unless a court finds under Section 10A that a special reason exists.
3. Burglary
This is an offence under Section 76 of the Crimes Act 1958, the elements are as follows
( 1. ) A person is guilty of burglary if he enters any building or part of a building as a trespasser with intent—
( a. )to steal anything in the building or part in question; or
( b. )to commit an offence—
( i. ) involving an assault to a person in the building or part in question; or
( ii. ) involving any damage to the building or to property in the building or part in question— which is punishable with imprisonment for a term of five years or more.
What is the penalty?
The penalty for burglary, if found guilty the offender faces level 5 imprisonment (10 years maximum). The prosecution must prove beyond a reasonable doubt and must rely solely on the facts that are presented to the court.
Give yourself the best opportunity for a good outcome, the team here at Jay and Co strive to give proficient and fair legal representation. We have dealt with countless criminal matters involving summary and indictable offences, so don’t hesitate to give us a call.
