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Aggravated Breaking Out of Dwelling-House After a Serious Indictable Offence

Aggravated breaking out of dwelling-house after a serious indictable offence is a crime under section 109(2) of the Crimes Act 1900, which carries a maximum penalty of 20 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You entered the dwelling-house of another person intending to commit a serious indictable offence, or you committed a serious indictable offence while in a dwelling-house
  2. You then broke out of the dwelling-house, and
  3. You did so in circumstances of aggravation.

A ‘dwelling-house’ includes:

  1. A building or other structure intended for occupation even if it has never been occupied
  2. A boat or vehicle in which a person resides, and
  3. A building or structure that is ancillary to a dwelling-house which is occupied or whose use is related to the dwelling-house.

A ‘building’ includes a vehicle, vessel, tent or temporary structure.

A ‘serious indictable offence’ is one which carries a maximum penalty of at least 5 years in prison, which includes larceny, robbery, intentional damage, and most other property offences.

‘Circumstances of aggravation’ are where you:

  1. Were armed with an offensive weapon, or instrument, or
  2. Were the company of another person or persons, or
  3. Used corporal violence on any person, or
  4. Intentionally or recklessly inflicted actual bodily harm on any person, or
  5. Deprived any person of his or her liberty, or
  6. Knew there was a person or persons in the dwelling-house.

Defences to the charge include:

  1. Self Defence
  2. Duress, and
  3. Necessity.

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