Housebreaking Flashcards
What are the proofs of Break & Enter & Commit SIO(s112)?
(1) (a) - accused, break, enter, dwelling or building, commit SIO
(1) (b) - accused, dwelling or building, commit SIO, break out
What is a Serious Indictable Offence (SIO)?
Any offence punishable by five years or more.
E.g. Larceny, damage, ABH
What are the two types of ‘break’?
(1) Actual
(2) Constructive - By threat, by fraud, by conspiracy
What must a ‘break’ involve?
A break must involve the break of a seal - cannot be a partly open window or door.
Does a break need to involve the breaking of a seal external to the dwelling or building?
No. R v Johnson - Opening an internal door such as a bedroom door once inside constitutes a break.
What are some examples of a constructive break?
Threat - threat causes victim to break the seal
Fraud - Victim admits defendant under deliberate false misapprehension
Conspiracy
How is a ‘dwelling-house’ defined?
Crimes Act s4 - Dwelling-house includes:
(a) Building/structure intended for occupation as a dwelling and capable of being so occupied (although never occupied)
(b) Boat/vehicle in which any person resides
(c) Other building/structure within same curtilage as dwelling house and occupied or whose use is ancillary to occupation of dwelling house.
What is required in relation to the ‘occupation’ of a dwelling house?
Can only commit offence in relation to dwelling house of another - cannot be your own.
Occupation, not ownership - owner can be charged for breaking and entering dwelling house occupied by tenant.
What are the six circumstances of aggravation that apply to B&E offences provided in s105A?
(1) Armed with offensive weapon/instrument
(2) In company
(3) Corporal violence
(4) Inflicts ABH
(5) Deprives any person of liberty
(6) Knows there is a person in the place
What is required in order to prove that the aggravation circumstance of ‘in company’ applies?
FP v R - Two or more persons with a common purpose, committed the crime and were present together - such presence being sufficiently proximate if it either (a) afforded encouragement to the other person or (b) operated to intimidate or coerce the victim
What is required to establish ‘armed’ as a circumstance of aggravation for a B&E offence?
Miller v Hrvojevic - Armed means more than possession, weapon must also be available to immediate use (easily and rapidly accessible).
In relation to a B&E offence, can the SIO and circumstance of aggravation apply as the result of one act?
Yes. R v O’Donoghue - No prohibited on both elements being made out by one act - e.g. ABH being both
What are the two SPECIAL circumstances of aggravation that apply to B&E offences?
(1) Inflicts wound or GBH
(2) Armed with a dangerous weapon
Are alternative verdicts available in relation to B&E offences?
Crimes Act s115 allows for a downgrade from aggravated to non-aggravated but not an upgrade. This, however, is not available in the Local Court.
Describe an attempt B&E
Person wearing gloves and carrying a backpack attempts to jimmy open a closed front door of a dwelling but despite his best efforts is unable to open it. He is arrested and tells police that he was going to steal a TV from inside.
