Our experienced criminal law solicitors have prepared a brief overview of the law relating to unlawful entry of a dwelling. If you or someone you care about is facing a charge of break and enter, you need specific advice and should contact Gatenby Criminal Lawyers on 55800120 for advice.
For more information on other similar charges, visit our PROPERTY OFFENCES.
Unlawful Entry of a Dwelling – The Law
The Invasion of Privacy Act 1971 provides the offence of unlawful entry of a dwelling in section 48A. The offence is defined below:
(1) Any person who enters a dwelling house without the consent of the person in lawful occupation or, where there is not a person in lawful occupation, without the consent of the owner is guilty of an offence.
(3) Any person who without lawful excuse, the proof of which lawful excuse shall be upon the person, is found in a dwelling house or the yard of a dwelling house is guilty of an offence.
Elements of the offence
To be found guilty of the offence of unlawful entry of a dwelling, the prosecution is required to prove, beyond a reasonable doubt, the following elements:
- The accused entered the dwelling house or yard thereof;
- The accused did not have consent of the lawful occupier or owner;
- The accused did not have a lawful excuse.
Subsection 3A defines yard as including any path, garden, curtilage, courtyard, enclosure, lawn or other ground or area within the precincts of the dwelling.
The maximum penalty for the simplicita allegation of enter dwelling is 20 penalty units or 1 year imprisonment.
The maximum penalty for an aggravated allegation of enter dwelling is 30 penalty units or 18 months imprisonment.
Jurisdiction – Where will the matter be heard?
The offence is not indictable and accordingly will be dealt with in the Magistrates Court.
Conviction – Does a conviction have to be recorded?
The sentencing Court has a discretion whether or not to record a conviction against you for the offence of fraud. Generally a conviction would not be recorded for a minor first offence for this type of offence, although one is likely for subsequent convictions, or where a circumstance of aggravation is made out.
The relevant factors are set out in section 12 of the Penalties and Sentences Act 1992, and include, the nature of the offence, the offenders character and age, together with the impact the recording a conviction would have on the offenders chances of finding employment. If you are concerned about a conviction being recorded on you or a loved you should seek legal advice.
This website contains general information about legal matters. The information is not advice, and should not be treated as such. You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.
For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.
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