What the Prosecution Needs to Prove

To secure a conviction for serious criminal trespass, the prosecution must prove the following elements beyond a reasonable doubt:

1. Unlawful Entry or Remaining
    
   • The accused entered or stayed in a property without consent or legal authority.
   • This can include breaking into a home, shop, office, or warehouse.
2. Intent to Commit an Offence (or Actual Commission of an Offence)
    
   • The accused either intended to commit an offence inside (e.g., theft, assault, property damage); or
   • Actually committed an offence inside after gaining unlawful entry.
3. The Type of Premises
    
   • If the property is a residential dwelling, it is considered more serious due to the risk of harm to occupants.
   • If it is a non-residential building, the offence still applies but usually carries a lower penalty.

If a person enters a property but does not have an intentionto commit a further offence inside, they may be guilty of a lesser offence suchas unlawful trespass (which carries a lighter penalty).

The Relevant Court

Serious criminal trespass is a major indictable offence, which means it must be heard in the District Court or Supreme Court. It cannot be finalised in the Magistrates Court.

What Defences Are Available?

There are several possible defences to a charge of seriouscriminal trespass, including:

1. Lack of Unlawful Entry – If the accused had permission or a legal right to be on the premises, they cannot be guilty of trespassing.
2. Lack of Intent – If there was no intent to commit an offence inside, the charge of serious criminal trespass may not be proven.
3. Mistaken Identity – If the prosecution cannot prove beyond a reasonable doubt that the accused was the person who committed the offence, they must be acquitted.
4. Duress – If the accused was forced or threatened into committing the offence, they may have a valid defence.
5. Mental Impairment – If the accused was suffering from a serious mental disorder at the time, they may be found not guilty due to mental incompetence under section 269C of the Criminal Law Consolidation Act 1935.

What Are the Specific Maximum Penalties for the Offence?

The penalties for serious criminal trespass vary dependingon the circumstances:

• Serious Criminal Trespass in a Residential Building (Home Invasion) – section 170(1):
  • Maximum penalty: 20 years' imprisonment.
• Serious Criminal Trespass in a Non-Residential Building – section 170(2):
  • Maximum penalty: 10 years' imprisonment.

The court may impose harsher penalties if aggravatingfactors are present, such as:

• Carrying a weapon.
• Assaulting or threatening occupants.
• Causing significant property damage.