One of the most common aggravating factors in burglary charges is the building being occupied at the time of entry.
This is an important consideration if you have been charged – aggravated burglary is one of the most serious property offences in Western Australia and comes with significant legal consequences.
In this article, we outline how building occupancy works in aggravated burglary charges, minimum sentences for the offence and how Chambers Legal can build an effective defence.
What is Aggravated Burglary?
Many of our clients find themselves confused about the meaning of aggravated burglary.
In WA, this is a more serious instance of burglary where a person unlawfully enters a place with intent to commit an offence and where one or more aggravating circumstances are present. The property being occupied at the time of entry is one of the most common examples of these.
Aggravating circumstances elevate the seriousness of the offence and are seen as causing an increased risk to the safety and wellbeing of the community. As such, aggravated burglary comes with stricter consequences than the standard offence.
Penalties for Aggravated Burglary in WA
Seen as one of the more serious property offences, aggravated burglary carries strict consequences and, on occasion, mandatory minimum sentences.
The maximum penalties are:
if the offence is an aggravated home burglary, imprisonment for 20 years
if the offence is not a home burglary but is committed in circumstances of aggravation, to imprisonment for 20 years
if the offence is a home burglary not committed in circumstances of aggravation, to imprisonment for 18 years.
In some cases, the charge can be dealt with in the Magistrates Court, where the maximum penalty is much lower.
The mandatory minimum sentence for aggravated burglary mostly applies under the three strikes rule for home offences. That results in a minimum 12 months imprisonment.
Harsher penalties can also emerge from offences involving violence, threats and weapons as well as offenders with a history of similar acts
Knowledge of Occupancy is Not Always Required for Charges to be Laid
In WA, a person can be charged with aggravated burglary even if they were unaware the home or property was occcupied.
This is because the law is interested in the fact of occupany, not the offender’s awareness of it. If the property was occupied at the time, that alone can be an aggravating circumstance, regardless of whether the offender knew.
Intent Doesn’t Always Matter
It is easy to assume that criminal liability always depends on intent. Although intent to enter and commit an offence is required for burglary more broadly, intent or knowledge of occupancy is not a requirement for aggravation.
This is known as a ‘strict liability’ component. The aggravating factor does not require proof that the accused knew about it. This is important to understand if you are facing such a charge.
Other Aggravating Factors
Home occupancy is not the only aggravating factor relevant to burglary. The following can also apply:
Being armed or pretending to be armed
- Being in company with others
Causing bodily harm
Making threats or using violence
Entering at night
Remember, these factors do not always require a specific intent beyond the act itself.
Defending Charges Involving Occupied Premises
If you’ve been charged with aggravated burglary, it is possible to challenge the charge. In cases involving occupancy, an experienced criminal lawyer can:
Dispute the factual basis: Was the property actually occupied at the relevant time?
Argue lack of evidence: Is there proof the accused was aware the building was entered unlawfully?
Negotiate a downgrade: In some cases, legal counsel may negotiate to have the charge downgraded to standard burglary or trespass
These are complex matters and require experienced legal advice. If you are facing a charge, it is important you seek legal advice as soon as possible, giving your lawyer the greatest chance of achieving the best possible outcome.
Contact Chambers Legal and Speak with a Burglary Lawyer Today
Aggravated burglary charges carry serious penalties and whether or not the accused knew someone was inside at the time won’t make a difference for the court.
At Chambers Legal, our team of criminal defence lawyers are vastly experienced in defending all kinds of burglary charges. They’ll help you understand your rights, build an effective defence and navigate the court process as smoothly as possible.
Importantly, we understand the distress that facing a criminal accusation can cause. To give you the utmost confidence, we stick to values of transparency and integrity – all legal advice is provided in writing and paired with proper cost notice.
If you would like advice about an aggravated burglary (or any other) charge, book a free, 15 minute phone consultation today.