Entering or being in premises and committing indictable offences

Burglary is defined s418 of the Criminal Code and makes it an offence to enter or be in the dwelling of another with an intent to commit an indictable offence.  Similarly s421 makes it an offence to enter or be in the premises of another with an intent to commit an indictable offence.

The word ‘dwelling’ as used in the definition of burglary in s 418 is defined under s1 to include any whole or part of a building or structure, which is for the time being kept by the owner or occupier of the residence therein of themselves, their family or servants.  This definition includes material constructions which do not come within the description of buildings (caravan may be a dwelling- R v Rose [1965] QWN 35). A motel unit occupied by a person for a week can also be considered a dwelling (R v Halloran [1967] QWN 34).

The word ‘premises’ as used in s421 differs from dwelling as it does not need to be kept by anyone. Premises as defined in s1 includes buildings, or structures of any type.  Intent to commit an indictable offence; this element is proven if the fact of entry coincides with the mental element of intent to commit an indictable offence.

The maximum penalty for burglary is 14yrs imprisonment. However if the person enter by break, the offence is committed at night, uses or threatens to use actual violence, or pretends to be armed with a dangerous or offensive weapon, is in the company of one or more than one person, or damages or threatens to damage property or actually commits an indictable offence, the maximum penalty increases to life imprisonment.

An example of burglary is found in R v Mortimer [2005] QCA 361- where the appellant was  convicted of burglary because he entered the house of another at night time and assaulted the victim occasioning bodily harm.  Another example of burglary can be found in R v Walker [2008] QCA 166- where the appellant entered the victim’s home, and took her car keys, jewellery, personal items and car.

The Maximum penalty for entering a premises with intent is 10years, however if an indictable offence is actually committed this increases to 14years imprisonment. An example is found in R v. Smith [2008] QCA 406- where the accused was found guilty of unlawfully entering premises with the intent to commit an indictable offence. Here the appellant entered the complainant’s yard but did not enter the house and ‘premises’ was found to include the land surrounding the house.  In R v Cornwall [2005] QCA 345- the accused was found guilty under s421 where he entered a shop by breaking the window and stealing property.

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