Burglary

Summary about the offence and a bit of information

Have you neen charged with Burglary and are and looking for more information?

Charges of Burglary, often considered as a “Home invasion” is a serious criminal offence with significant consequences.

Sentencing statistics in September 2022 showed across 279 cases, 75% of people who were sentenced for a charge of Burglary received a period of imprisonment. A careful assessment of the facts, law and your instructions are needed to reduce risks and ensure you are aware of the risks and benefits of all options available to you.

Murray Torcetti Lawyers prepare a Defence Assessment for all our clients. If you have been charged with Burglary (Home invasion), a Defence Assessment will take some of the uncertainty out of the situation and help you plan the best approach moving forward. More information about the Defence Assessment can be found here.

What does the Prosecution need to prove beyond resonable doubt?

The defendant

Enters – or is in

The dwelling of another

With the intent to commit

An indictable offence

Circumstances of Aggrevation (increases Maximum Penalty)

(2)	By break	s 418(1) - A person who breaks any part, whether external or internal, of a dwelling or any premises, or opens, by unlocking, pulling, pushing, lifting, or any other means whatever, any door, window, shutter, cellar, flap, or other thing, intended to close or cover an opening in a dwelling or any premises, or an opening giving passage from one part of a dwelling or any premises to another, is said to break the dwelling or premises.

(3)(a)	At night	S 1 definitions: “Night” is defined as any time between 9pm and 6am.

3(b)(i)	Uses or threatens to use actual violence	Same test is used for the charge of robbery, the lest amount of violence is sufficient for the charge to be made out.

3(b)(ii)	Is or pretends to be armed with a dangerous or offensive weapon, instrument or noxious substance	Anything capable of being used for offensive purposes even though it is also capable of being used for innocent purposes. – context is the issue.

3(b)(iii)	Is in company with 1 or more persons	With others, look to facts to see where it is alleged the intention was.

3(b)(iv)	Damages, or threatens or attempts to damage, any property

(4)	Commits an indictable offence	Check facts and work backwards.

Some of the things your lawyer will be aware of

What are some of the ways the lawyers can resist (fight) the charge of burglary?

When the lawyers first see the police materials, what are the first and most frequent options to test the strength of the charge the lawyer might consider?

Forensics that connect you to the dwelling at the time of the alleged offence. Often it may be DNA or fingerprints that link a defendant to the scene of the crime. Where the property is considered “moveable property” the defence can argue the item does not place you at the location, only that you have touched property at some time that has been found at the location.

Any CCTV of the incident, private homes may have CCTV and often commercial locations have cameras in and around the area.

Any additional witness statement of people who saw the incident

Where is the source of the charge at law?

What is the maximum penalty for the charge

What court will hear the charge?

Are there alternate charges? or Risk Factors?

What are some of the Defences to Burglary

Weakness of the “elements” of the charge

Accident

Speaking generally, a defendant is not criminally responsible for the consequences of an act or omission if they did not intend those consequences, or reasonably foresee them, and an ordinary person in their position would not have reasonably foreseen the consequences as a possible consequence of the act or omission either. This is an ‘excuse’ rather than a defence and is further complicated with a number of other tests and legal principles from the case law, a lawyer should be retained to assist identifying if this excuse is open to you.

Mistaken Identity

This not a "defence" as the law applies see it, but an approach the defence might take in preventing the prosecution from proving the 1st element above to the standard of beyond reasonable doubt.

Can the Prosecution prove it was you? In some cases, the identity of the person who did the assault causing the bodily harm might not be readily identified. An example would be if there the assault occurred in a dark part of town, the complainant was near sighted and drunk and only a poor description of the defendant was given.

Intoxication

Emergency

The QLD District and Supreme Courts Criminal Law Bench Books summarize the defence as:

Extraordinary Emergency, s 25 A person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary powers of self-control could not reasonably be expected to act otherwise.

Your lawyer will need to review the facts, law and your instructions to determine if the defence is open to you and form a strategy to wield the defence in a way that best works in your unique case. Defences are and can be tricky to navigate and may rase issues of evidence.

Duress

In certain circumstances the law offers a defence if we are compelled to act to resist the violence of others. The Queensland Criminal Code calls this ‘compulsion’ and says, for present purposes, that a person is not criminally responsible for an act if that person does the act because it is reasonably necessary to resist a threat of actual and unlawful violence to themselves or property.

Honest claim of right to the property

Can the charge be 'Case Conferenced'?

For criminal charges in Queensland, your defence lawyer will review your charges, the possible evidence and your instructions to start negotiating the charges. The aim of case conferencing for defence lawyers is to place you in the most favorable position by resisting charges and facts that are not supported by evidence, law or contrary to your instructions.

Case Conferencing – Disclosure

At the start of your case, you are provided the police version of the facts but not the evidence relied upon. Your lawyer will seek the disclosure of materials to clarify the facts further or determine the strength of the case against you.

Example: After an incident at the local pub, you have been charged with assault occasioning bodily harm. The police facts note the incident was recorded on CCTV and have sought the CCTV be disclosed to see if the footage supports the police version (or have left out important facts supporting your version) and medical records.

Case Conferencing – Facts

You might wish to plead guilty to the offences, but the police materials are different to your version of the events. Defence lawyers propose amendments, additions or removal of facts so the matters do not need to go to hearing. From a defence perspective, the purpose of conferencing on the facts is to remove irrelevant information or facts that may result in a higher sentence.

Example: CCTV records you striking a person several times. The police facts state it was "5 punches", but the footage is unclear. Through case conferencing the facts were amended to “struck the victim a number of times” or “the complainant was struck twice”.

Case Conferencing – The Law

If the charges are not supported by the evidence the prosecution has, the lawyers suggest the charge be withdrawn or reduced to a lesser offence. If the law provides a mitigation or defence to your charges, your lawyer will conference with the prosecution to seek the charge be withdrawn.

Example: You have been charged with assault occasioning bodily harm, however the medical evidence does not support the charge. As a result of conferencing, the charge was amended to the less serious charge of common assault.

Case Conferencing – Charges

Charges are not set in stone after the police issue with the notice to appear or release you on bail. Often the police will “over charge” and though the process of case conferencing more appropriate charges are agreed to.

Example: The police do a search of your property and locate your phone. After searching your phone a few text messages are found where you have offered to supply a few people (or even one person a number of times) the cannabis. The police charge you with trafficking in cannabis. After reviewing the evidence the defence lawyers and prosecution agree that 3 charges of supply is far more appropriate.

What you can do to mitigate penalty if you are pleading guilty to Burglary?

Sometimes the decision to plead guilty is made for several reasons beyond actual guilt of the charge. It might be because the evidence is overwhelming, the risk of a trial is not worth the time and funds required or because pleading guilty is the fastest option. After consulting with the lawyer, if a plea is identified and we are instructed to list the matter for sentence there are numerous things you can do to assist the court to see beyond the charges and demonstrate remorse.

Demonstrate Employment

Demonstrating employment through a letter of employment assists the court to see you are productive and able to maintain responsibilities whilst being a member of the community. The letter could address your responsibilities, how long you have been employed and your attitude towards work.

Your Murray Torcetti Lawyer will review the letter of employment ahead of court to ensure all important points are addressed in the letter.

Letters of Reference

Character references assist the court by showing you have other parts to your character. You are more than a moment in time as read out by the prosecutor. You may be an active member of the community, provide support to a person in need or be able to demonstrate this was out of character.

Before the court date your Murray Torcetti Lawyer will review the references to ensure the letters achieve what is intended by the people who have taken the time and effort to assist you at your sentencing date.

Letters of Remorse

Attend Counselling

Offer compensation / Resitution

Before making any offers of compensation or restitution it is important to make you have been given legal advice. You may be admitting guilt where you have a defence. Or, if not done correctly you may be seen to be attempting to 'buy your way out of trouble' which will not go down well for you in court. However, genuine offers of compensation are one way to demonstrate genuine remorse for you behaviour to both the complainant and the courts.

Our Lawyers who defend this offence

Solicitor & Director

James Torcetti

Solicitor

Grant Young

5 Star Google Reviews

Brisbane Office

Suite 10 Level 12 95
North Quay Brisbane 4000

07 5414 4209

Caboolture Office

4/13 King Street

Caboolture, Queensland

07 5414 4209

T.M - 2021

I must say, when simply Listening is the hardest thing people find to do properly on this planet, Miles is fantastic. His ability to listen come from a fantastic Attitude overall. I was very very happy with all that this firm did for me. I have absolutely no hesitation to recommend these guys to any of my friends or colleagues. Thank you.

B.N - 2021

Mr James Torcetti, Legal Practice Director, had total control of my case and represented me each time we went to court. I didn't have to appear in court except for the first time and the main time, being the final outcome. James gave me confidence and my self respect back, with his high standard of ethics. James made me feel comfortable and went out of his way to do his best to keep on top of things referring to my case, for the best outcome. I was overjoyed with the outcome of my case as I was convinced I would be walking out the back door instead of the front door and James was very truthful with me and never sugarcoated my situation. James also gave me the opportunity to make weekly payments to pay off his account.
I highly recommend Mr James Torcetti, and would definitely use his services again, however I hope I don't have to.

M.C - 2021

Murray Torcetti Lawyers were engaged to assist with providing legal advice for a criminal case and to get the best possible outcome without prejudice or judgment. It has been a long hard haul for the family and we have had a successful outcome. This didn’t come easy for both parties, there were some challenges but all the way through we were kept informed of progress and potential outcomes and potential strategies to ensure the best result. They have been a brilliant to deal with (even when there was bad news), they have remained compassionate, professional and responsive at all times and for this my family is very grateful. Well done and thank you.

Burglary

Have you neen charged with Burglary and are and looking for more information?

What does the Prosecution need to prove beyond resonable doubt?

Some of the things your lawyer will be aware of

What are some of the Defences to Burglary

Can the charge be 'Case Conferenced'?

What you can do to mitigate penalty if you are pleading guilty to Burglary?

Our Lawyers who defend this offence

Solicitor & Director

James Torcetti

Solicitor

Grant Young

Brisbane Office

Suite 10 Level 12 95 North Quay Brisbane 4000

07 5414 4209

Caboolture Office

4/13 King Street

Caboolture, Queensland

07 5414 4209

Suite 10 Level 12 95
North Quay Brisbane 4000