Robbery / Burglary

What is a robbery?

Robbery under the Crimes Act is constituted by the following three elements:

1. The criminally accused stole something,
2. Immediately before, or at the time of the theft, the accused:
a. Used force on a person, or
b. Put someone in fear that they would be subject to force, or
c. Sought to put someone in fear that they would be subject to force
3. That the accused did so in order to commit the theft

It is the element of using force, or threatening to use force, that elevates a crime from theft to a robbery. This is reflected in the maximum penalties legislated in the Crimes Act; 10 years for theft and 15 for robbery.

No legal standard exists for the minimum physical force to constitute “use of force”. Rather, this question is left to the jury to determine. With regard to threats, the accused must place the victim “in fear” of the use of force (ie the threat must be sufficient to cause intimidation). It does not matter if the victim was actually in fear, rather the element is satisfied if it can be shown the accused sought to put the victim in fear.

If the threat is made after the property is appropriated, then it is arguable that the second element is not made out. The threat must be made immediately before or at the time of the theft, not after. However, as an appropriation can be a continuing act, if force is applied or threats made at any point prior to the completion of the appropriation, then the element may be satisfied.

What is a burglary?

Burglary under the Crimes Act is constituted by the following three elements:

1. The accused entered a building (or part of),
2. The accused did so as a trespasser (ie did not have permission to be on the property), and
3. The accused intended to:
a. Steal something from the building, or
b. Commit an offence punishable by imprisonment for 5 years or greater involving either;
i. An assault to a person in the building, or
ii. Damage to the building

The key element to a burglary is the entering of a building by the accused as a trespasser. The maximum penalty for burglary under the Crimes Act is 10 years.

Whether a structure is a building is a question left to a jury. An inhabited vehicle or vessel, regardless of whether the person living there is present at the time of the burglary, is taken to be a building under the act.

The prosecution must prove that the accused knew that they were on the premises without permission, or were reckless as to whether they had any right to enter.

As to the criminally accused’s intentions, it must be proved that the accused entered the building with the intention of either stealing or committing an offence involving assault or damaging the building. If the person formed that intention after entering the building, the element is not made out.

With regards to stealing, it does not need to be proven that the accused intended to steal any one particular item or items, or that they actually stole anything at all. Rather, all the prosecution must establish is that the accused intended to steal “anything in the building”.


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