WRITE: Burglary is defined/created and punished in s419 (1) as when a person enters or is in the dwelling of
another with intent to commit an indictable offence in the dwelling and is punished with 14 years imprisonment,
unless aggravated by s419 (2), (3) or (4). Discuss Aggravating if relevant (should be).
N.B. s22 defence of consent should apply in this offence.
S419 (2): If offender enters the dwelling by means of any break, he/she is liable to imprisonment for life.
Has [accused] committed a ‘break’ under s 419(2)?
WRITE: Refer to s418 (1) or (3) and analogy to cases. Therefore here, [accused] did/didn’t enter the dwelling
by means of a break.
Break – Definition s418 (1): Breaks any part whether internal or external of a dwelling or 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 premises, or an opening giving
passage from one part of a dwelling or premises to another, is said to break the dwelling or premises.
Break – Definition s418 (3): Break if obtains entrance by threat or artifice used for that purpose, or by
collusion with any person in the dwelling, or who enters any chimney or other aperture permanently left open
for the necessary purpose, but not intended to be ordinarily used as a means of entrance, is to have broken and
• Pushing open a window that is already partially open, NOT BREAK; i.e. not opened by unlocking,
pulling, pushing, lifting, as it was already partially open: Hally
• Inserting hand through partially opened window and undid latch and then opened window further, WAS
BREAK, i.e. because had to unlatch: Parry
• Knocked on door to see if anyone home, door opened as he knocked, NOT BREAK: Galea
• Impersonation, WAS BREAK: Boyle (obtained by saying he was there on behalf of BBC to locate radio
S419 (3): If:
(a) the offence is committed in the night; or
Night defined in s1 as between 9pm 6am.
(b) the offender—
(i) uses or threatens to use actual violence; or
Just physical force which is real, not enough to be threatened or contemplated: De Simoni
(ii) is or pretends to be armed with a dangerous or offensive weapon, instrument or noxious
Not necessary to prove it was brought into dwelling with intent to use it in an offensive
Replica handgun, is an instrument not a weapon: Standley
Plastic drink bottle capable of being an offensive weapon: Duong To Nguyen
(iii) is in company with 1 or more persons; or
Same as in Robbery. (iv) damages, or threatens or attempts to damage, any property;
Damaged when rendered imperfect or inoperative: Zischke
offender is liable to imprisonment for life.
(4) Any person who enters or is in the dwelling of another and commits an indictable offence in the dwelling
commits a crime and is liable to imprisonment for life.
Has [accused] committed burglary?
Has [accused] entered or was in?
WRITE: Here [accused] has/hasn’t [entered/been in] the [structure] because in relation to the s418(2) definition
[facts]. Explain with reference to definition/cases.
Enters – Definition s 418 (2) – said to enter as soon as any part of the person’s body or any part of any
instrument used by the person is within the dwelling.
Is [structure] a dwelling of another?
WRITE: Here the [structure] is/isn’t being