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Mel Week 11 Study Cards > Housebreaking > Flashcards

Housebreaking Flashcards

1
Q

What offence is found at Section 112 of the Crimes Act and what are the proofs of that offence?

A

The offence is Break and Enter and Commit Serious Indictable offence OR Break out of dwelling house after committing an SIO.

The proofs are:

Section 112 (1)(a): 
The Accused
Break
Enter
Dwelling House or other building
Commits SIO.
Section 112 (1)(b): 
The Accused
Whilst in Dwelling House or other building
Commits SIO
Breaks out.

112 Breaking etc into any house etc and committing serious indictable offence
(1) A person who—
(a) breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or
(b) being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building,
is guilty of an offence and liable to imprisonment for 14 years.
(2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years.
(3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 25 years.

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2
Q

What is a Serious Indictable Offence?

A

Any offence punishable by five years or more. eg: larceny, damage property, ABH

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3
Q

What are the two types of break?

A

Actual and constructive

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4
Q

What is a constructive break?

A

A constructive break uses threats, fraud or conspiracy

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5
Q

What must a break involve?

A

A break must involve a breaking of a seal. Cannot be a partly open window or door.

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6
Q

Cite caselaw that defines what is required for entry?

A

R v Davis - “any part of the offender’s body - however small”

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7
Q

How is a dwelling house defined and where is that definition found?

A

Section 4 of the Crimes Act. A Dwelling house includes:

Dwelling-house includes—

(a) any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied,
(b) a boat or vehicle in or on which any person resides, and
(c) any building or other structure within the same curtilage as a dwelling-house, and occupied therewith or whose use is ancillary to the occupation of the dwelling-house.

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8
Q

What is required in relation to occupation?

A

Can only break and enter the dwelling house of ANOTHER - not your own.

Occupation, not ownership - A landlord can be liable for breaking and entering occupied by his tenant.

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9
Q

What circumstances of aggravation apply to break and enter offences and where is this legislated?

A

Section 105A

Section 105A of the Crimes Act:

(a) armed with an offensive weapon/instrument
(b) in company
(c) use of corporal violence
(d) recklessly or intentionally inflicts ABH
(e) deprives person of liberty
(f) knows that there is a person in the place

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10
Q

What is required to prove “in company”? Cite caselaw

A

FP v R

FP v R found that “in company” requires:

  • the offence was committed, and
  • that the co-accused persons shared a common purpose, and
  • the persons were physically present, such presence being sufficiently proximate if:
  • it afforded encouragement to the co-accused persons, or
  • it operated to intimidate or coerce the victim
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11
Q

What is common purpose?

A

When two or more people act together in pursuance of a common unlawful objective then every act done in furtherance of that common purpose by any of them is, at law, done by all of them - unless one person acts outside the common purpose.

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12
Q

What is required to establish “armed”? Cite caselaw.

A

Miller v Hrvojevic

“To be armed with a weapon means something more than to be in possession of it. the weapon must also be available for immediate use as a weapon. No doubt questions of fact and degree are involved. A man is armed with a pistol if he is wearing it in a holster, although perhaps not if it is in the boot of his car. It is not necessary for it to be in his hand for him to be armed with it”.

The facts in Miller v Hrvojevic were that the defendant had a knuckle duster in his left side trouser pocket, where it could be easily and rapidly slipped into his hand.

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13
Q

Can SIO and circumstance of aggravation both be applied as a result of one act? Cite Caselaw.

A

R v O’Donoghue

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14
Q

What are the “special” circumstances of aggravation?

A

Circumstances of special aggravation means circumstances involving either or both of the following:

(a) inflicts wound or GBH
(b) armed with a dangerous weapon.

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15
Q

Are alternative verdicts available?

A

Yes. Section 115(a) allows for alternative verdicts in relation to downgrading from circumstance of aggravation to substantive charge but NOT the other way around. This, however is not available in the local court.

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16
Q

Describe an “attempt” B/E and S.

A

Defendant goes to the front door of a dwelling house, wearing gloves and carrying a backpack, grabs a metal bar he finds and sticks it into the door frame, despite his best efforts, he cannot open the door, a neighbour sees him and calls police. He is arrested wearing the gloves and the backpack, he tells police that he was going to steal electric equipment from inside the dwelling house.

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17
Q

What does Section 113 provide?

A

Break and Enter with INTENT to commit a SIO. Same proofs as a Section 112 offence, except rather than commit an SIO, they must have intended to commit SIO (not necessary that it was accomplished) - must prove INTENT. “Intent” must be contemporaneous with the breaking and entering, not formed after the entering.

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18
Q

What are the key differences between an “attempt” and Section 113?

A

An attempt relates to the attempt to break and enter. No physical break is required. Whereas, with Section 112, there is a physical break and enter, but unaccomplished SIO.

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19
Q

What provision relates to stealing property in a dwelling-house?

A

Section 148 Crimes Act.

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20
Q

S112(1) is B/E and Commit SIO. 112(2) and 112(3) provides the aggravated offence and the specially aggravated offence. What penalties do they all hold and what are the circumstances of aggravation?

A

112(1) holds 14 years imprisonment penalty.
112(2) (Aggravated) holds 20 years imprisonment.
112(3) (Specially aggravated) holds 25 years imprisonment.

112(2) Aggravated circumstances: found at Section 105A
Include:
* Alleged offender is armed with offensive weapon or instrument;
* Alleged offender is in company of another person or persons;
* Alleged offender uses corporal violence on any person;
* Intentionally or recklessly inflicts ABH on ANY person;
* Deprives any person of his or her liberty;
* Knows there is a person or that there are persons in the place where the offence is alleged to be committed.

For the circumstances of knowing there is a person in the place, the defendant is presumed to have known that fact unless the defendant satisfies the curt that he or she had reasonable grounds for believing that there was no one in the place.

Circumstances of special aggravation include:

  • alleged offender wounds or intentionally or recklessly inflicts GBH on ANY person;
  • the alleged offender is armed with a dangerous weapon (being a firearm, a prohibited weapon or a spear gun).
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21
Q

What are the circumstances of aggravation? Cite section.

A

Section 105A of the Crimes Act:

(a) armed with an offensive weapon/instrument
(b) in company
(c) use of corporal violence
(d) recklessly or intentionally inflicts ABH
(e) deprives person of liberty
(f) knows that there is a person in the place

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22
Q

What are the circumstances of special aggravation? Cite section.

A

Section 105A

circumstances of special aggravation means either or both:

(a) alleged offender intentionally wounds or intentionally inflicts GBH on any person,
(b) alleged offender inflicts GBH on any person and is reckless as to causing ABH to that or any other person,
(c) the alleged offender is armed with a dangerous weapon.

23
Q

What are the proofs of Break Enter and Commit Serious Indictable Offence?

A
  1. Breaking by the Accused
  2. Entry by the Accused
  3. A dwelling-house (or any other building)
  4. Commit the serious indictable offence as charged -OR-

Alternatively, 112(1)(b), whilst the Accused was in such a building:

(a) . he or she committed a serious indictable offence; and
(b) . then broke out.

24
Q

In relation to “break” cite caselaw where it was found that a closed but unfastened door is a break.

A

R v Brown

25
Q

In relation to “break” cite caselaw where it was found that raising a closed but unfastened window is a break.

A

R v Hyams

26
Q

In relation to “break” cite caselaw where it was found that opening a cellar flap held down only by it’s own weight is a break.

A

R v Russell

27
Q

If a partly opened window is raised, is this a break?

A

NO

28
Q

If a partly open door is pushed open, is this a break?

A

No.

29
Q

For a break and enter, does it have to be an external sealed door or window? Cite caselaw.

A

R v Johnson. No. Can be internal.

30
Q

Permission?

A

Ghamrawi et al v R {2017} NSWCCA 195

NOT SURE if we need to know this.

31
Q

Give two examples of a constructive break? Cite caselaw in relation to constructive break by fraud.

A

By threat: Where the defendant threatens an occupant which causes them to open a door or ‘break a seal’ to admit the defendant.

By fraud: Person admits the offender but is under some misapprehension which is deliberate on the part of the offender. The person would not admit the offender if he knew the truth. (R v Boyle)

32
Q

One of the proofs of B/E is “entry by the Accused”. Cite caselaw on what constitutes entry.

A

R v Davis: any part of the offender’s body however small.

R v Rust and Ford: if using an instrument only, must be for the purpose of accomplishing the serious indictable offence.

33
Q

In relation to using an instrument to enter a premises, when is an entry considered to have occurred?

A

“An entry can occur if any instrument, “being used to commit the felony intended” passes the line of the threshold, regardless of whether the instrument was used in the breaking.

“Where a tool or other instrument is intruded, without any part of the person being within the house, it is an entry if the insertion was for the purpose of completing the felony but not if it was merely to accomplish a breaking”.

34
Q

Does entry by the Accused include the protrusion into the premises that occurs when, for example, an instrument is used to effect the break (eg: the butt of a gun is used to break glass in a window).

A

No. Entry has not occurred.

“Where a tool or other instrument is intruded, without any part of the person being within the house, it is an entry if the insertion was for the purpose of completing the felony but not if it was merely to accomplish a breaking”.

35
Q

What does a “dwelling house” include? And where is the definition found?

A

Definition for Dwelling House is found at Section 4 of the Crimes Act. Includes:

(a) any building or other structure intended for occupation as a dwelling and capable of being so occupied although it has never been so occupied.
(b) a boat or vehicle in or on which any person resides; and
(c) any building or other structure within the same curtilage as a dwellling-house and occupied therewith or whose use is ancillary to the occupation of the dwelling house.

36
Q

DPP v Jay Williams [2018] found what in relation to “dwelling house”?

A

Underground secure car park of an apartment complex satisfies the criteria of “dwelling-house” by virtue of subsection (c) of the definition.

ie: (c) any building or other structure within the same curtilage as a dwellling-house and occupied therewith or whose use is ancillary to the occupation of the dwelling house.

** Victim’s motor vehicle parked in his car space broken into and wallet stolen. Accused charged with an offence under s111(2)

37
Q

What is an Serious Indictable Offence and provide examples of same?

A

Serious Indictable offences are offences that are punishable by life or five years or more. As defined Section 4 of the Crimes Act.

Examples include: Larceny, Malicious Damage, Indecent Assault, Assault Occasioning Actual Bodily Harm, Intimidation, Sexual Touching, Take & Detain, Greivous Bodily Harm

38
Q

What does it mean to “Break out”?

A

‘Break’ has the same meaning whether enter or out. Can be an internal or a closed but unlocked door (eg: secretes him/herself inside until premises is closed, steals and breaks out)

39
Q

In relation to an Aggravated offence, one of the circumstances of Aggravation includes at (f) that the offender knows that there is a person or that there are persons, in the place where the offence is alleged to be committed. For the purposes of this clause (f) what is the defendant presumed to have known.

A

For the purposes of paragraph (f) of the definition of ‘circumstances of aggravation’, if there was a person, or there were persons, in the place in relation to which an offence is alleged to have been committed at the time it was committed, the defendant is presumed to have known fact unless the defendant satisfies the COURT that he or she had reasonable grounds for believing that there was no one in the place.

40
Q

Is there any prohibition on relying on two elements (ie: a serious indictable offence and circumstances of aggravation)? Cite caselaw.

A

R v O’Donoghue [2005] NSWCCA:

“A single act of attacking the victim with some scooter handlebars and injuring him an be relied on by the Crown to constitute both an SIO (namely an assault OABH.. AND the circumstance of aggravation, namely the use by the appellant or corporal violence. There is no prohibition on those two elements being made out by the commission of the one act.

41
Q

Are there alternative verdicts available for Break and Enter offences?

A

Section 115(A) allows for alternative verdicts in specified housebreaking offences to be found in a DESCENDING level of aggravation.

An aggravated offence may be reduced to a basic offence: If on the trial of a person for an offence under section 106 (2), 107 (2), 109 (2), 111 (2), 112 (2) or 113 (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 106 (1), 107 (1), 109 (1), 111 (1), 112 (1) or 113 (1) as appropriate, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.

(2) Specially aggravated offence reduced to aggravated offence If on the trial of a person for an offence under section 106 (3), 107 (3), 109 (3), 111 (3), 112 (3) or 113 (3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 106 (2), 107 (2), 109 (2), 111 (2), 112 (2) or 113 (2) as appropriate, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.
(3) Specially aggravated offence reduced to basic offence If on the trial of a person for an offence under section 106 (3), 107 (3), 109 (3), 111 (3), 112 (3) or 113 (3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 106 (1), 107 (1), 109 (1), 111 (1), 112 (1) or 113 (1) as appropriate, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. This subsection does not apply to an offence if the jury proceeds under subsection (2) in relation to it.

42
Q

Where is the definition of “Offensive weapon or instrument” found?

A

Section 4 of the Crimes Act (wide enough to cover guns, knives, screwdrivers and blood filled syringes).

BUT there is a specific offence (carrying a greater penalty) when the “offensive weapon” is a dangerous weapon (see Section 105A definitions of “special aggravation”).

43
Q

Describe “In company” cite caselaw(s).

A

Button and Griffen (2002) held: “It has been held that there must be such proximity as would enable the inference that the coercive effect of the group operated, either to embolden or reassure the offender in committing the crime, or to intimidate the victim into submission”.

Also good “in company” case law is: FP v R and R v Leoni

44
Q

Cite caselaw for “Armed”?

A

Miller v Hrvojevic [1972] found: “To be armed with a weapon means something more than to be in possession of it; the weapon must also be available for immediate use as a weapon. A man is armed with a pistol if he is wearing it in a holster, though perhaps not if it is in the boot of his car. It is not necessary for it to be in his hand for him to be armed with it. In the present case the knuckle duster was where it could easily and rapidly be slipped into his hand.

45
Q

Section 113 “Break Enter with INTENT to commit a serious indictable offence” - what are the Proofs and what must be proved? What is the difference between Section 112 and Section 113?

A

Proofs: The Accused/Breaks/Enters/Premises/With intent to commit a serious indictable offence. YOU MUST PROVE INTENT.

46
Q

What offence is found at Section 114 of the Crimes Act?

A

Being armed with intent to commit indictable offence

47
Q

Cite caselaw x 2 for ‘With Intent’.

A

R v Wood
Vallance v Dougan.

R v Wood found: “The intent of the accused may be inferred from the nature of the weapon or instrument with which he or she is armed, the place where he or she is found, her or his statements and other circumstances.

Vallance v Dougan found: “A conviction under this section is good even if the evidence shows, not only the intent to commit, but the actual commission of the offence”.

It is sufficient for the prosecution to prove that the person had a general intention of committing an indictable offence, and it is not necessary to allege or prove an intention to commit a particular type of indictable offence.

48
Q

What is found at Section 417 of the Crimes Act?

A

Defence of Lawful authority or excuse.

417 Proof of lawful authority or excuse
Wherever, by this Act, doing a particular act or having a specified article or thing in possession without lawful authority or excuse, is made or expressed to be an offence, the proof of such authority or excuse shall lie on the accused.

** If this defence is relied upon - the proof or evidentiary burden lies upon the accused and it is up to the prosecution to negative it. This burden shifts to the accused to prove it was lawful AFTER the prosecution prove the Deft was in possession of the implement

R v Patterson

49
Q

R v Oldham found what about instruments used for housebreaking?

A

“Every instrument which from its nature is capable of being used for housebreaking, although ordinarily used for lawful purposes (for example, a house key, a pair of pliers) is a housebreaking implement if the circumstances at the time when the accused was found in possession of it indicate that it was her or his intention to use it as such”.

50
Q

Section 115?

A

Being convicted offender armed with intent to commit indictable offence.

Whosoever, having been convicted of any indictable offence, afterwards commits any offence mentioned in Section 114, shall be liable to imprisonment for ten years”. (114 offence needs to be made out).

51
Q

Section 148?

A

Steal property in a dwelling house.

Whosoever steals in a dwelling-house any property shall be liable to imprisonment for 14 years.

R v Fry: “must be under the protection of the house”

The word “steals” is used in this section and not “commits larceny”. It is therefore submitted that this section contemplates any form of dishonest taking.

52
Q

What are the differences between Section 148 and Section 112?

A

Section 148 - Steals property from dwelling house.

Section 112 - Break, enter and commit serious indictable offence.

Section 148 does not require a “break” - can walk straight in.
Section 148 only relates to “stealing” whereas Section 112 is any SIO.
Section 148 only relates to a “dwelling house” whereas Section 112 relates to other premises.

53
Q

Does a break have to involve a seal external to the dwelling house or building? Cite Caselaw.

A

R v Johnson - Opening an internal door such as a bedroom door constitutes a break.

54
Q

Armed with Intent (Section 114) includes?

A

(1) Any person who—
(a) is armed with any weapon, or instrument, with intent to commit an indictable offence,

(b) has in his or her possession, without lawful excuse, any implement of housebreaking or safebreaking, or any implement capable of being used to enter or drive or enter and drive a conveyance,
(c) has his or her face blackened or otherwise disguised, or has in his or her possession the means of blacking or otherwise disguising his or her face, with intent to commit an indictable offence,
(d) enters or remains in or upon any part of a building or any land occupied or used in connection therewith with intent to commit an indictable offence in or upon the building,

shall be liable to imprisonment for seven years.

** NOTE: Subsection (d) does not require them to be armed.

Mel Week 11 Study Cards (4 decks)

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