Burglary is a serious offence in Western Australia. It carries steep penalties and a conviction can have significant impacts of future travel and employment opportunities.
But in cases where certain legal elements are missing or unprovable, what begins as a burglary charge can be reduced to the lesser offence of trespass. If the facts align and with proper legal advice, you may be able to achieve this downgrade.
In this article, we explore when a burglary charge might be downgraded to trespass, how the two charges differ under WA law and why early legal advice is essential for both allegations.
The Key Differences Between Burglary and Trespass
Under WA’s Criminal Code and Criminal Investigation Act, burglary and trespass are two distinct offences.
Burglary involves entering or being in a place without consent with the intent to commit an offence such as stealing or assault. The critical elements are:
- Entry without consent
- Intent to commit another crime while inside (theft, damage, etc.)
Trespass, however, is simply being on private property without permission. This charge can come regardless of whether another offence was intended or committed.
While both offences involve being somewhere unlawfully, burglary involves the intent to commit another offence, whereas trespass does not.
Can a Burglary Charge Be Downgraded?
It definitely can, but it’s not automatic. A downgrade often occurs in cases where the prosecution cannot prove one or more elements of burglary (typically the intent to commit another offence).
The most common scenarios for downgrade are:
- No clear evidence of intent: If the accused was found inside a property but had not stolen anything, damaged anything or made any verbal threats, proving intent to commit a further offence may be difficult.
- Mistaken identity or lack of entry: If CCTV footage or eyewitness evidence is weak or inconclusive and it’s unclear whether the accused actually entered the premises, the charge may not hold.
- Voluntary entry followed by an argument: If you were initially invited onto the property and a dispute occurred after, burglary may not be the appropriate charge.
When home and other burglary charges are downgraded, trespass may be considered more appropriate. This carries lighter penalties and fewer long-term consequences.
Penalties for Trespass vs. Burglary
Whilst there may only be a few elements that distinguish the two offences, the difference in consequences between burglary and trespass is substantial:
Offence | Maximum Penalty |
|---|---|
| Burglary (basic) | 14 years imprisonment |
| Aggravated Burglary | 20 years imprisonment |
| Trespass | 12 months imprisonment and/or a $12,000 fine |
It’s important to note that a trespass charge may be eligible for diversionary programs or a spent conviction. Whilst it would still be a criminal matter, it would be less damaging to the accused’s employment and travel prospects. To find out is these programs suit your charges, contact one of our lawyers for burglary case advice.
How Can I Negotiate a Downgrade?
If you are facing a burglary charge and feel as though it should be downgraded to a trespass, you will require legal representation.
A criminal defence lawyer may be able to:
- Challenge the evidence of intent
- Raise defences such as honest and reasonable mistake or lack of intent
- Negotiate with the prosecution during case conferencing or trial preparation to accept a plea to a lesser charge
Downgrading a burglary charge is highly fact-dependent. It will require an experienced and strategic practitioner with a strong understanding of the case and WA’s legal framework.
At Chambers Legal, we are proud to staff a team experienced in defending burglary charges ranging from home to aggravated offences. Recognising that facing a criminal charge is incredibly stressful for you and your loved ones, we work with transparency and integrity to make the process as manageable as possible. Our tailored legal advice is always provided in writing and paired with proper cost notice.
Contact Chambers Legal and Get Early Advice From a Home Burglary Lawyer
If you have been charged with burglary, it’s important to contact a lawyer as soon as possible. Even if you believe the situation is nothing but a misunderstanding, the consequences can be significant without proper advice.
At Chambers Legal, we will assess the evidence, advise on possible defences and engage the prosecution to have charges downgraded or withdrawn where possible.
For an honest assessment of your situation, contact Chambers Legal or book a free, 15-minute phone consultation.