Specially Aggravated Breaking Out of Dwelling House After Serious Indictable Offence

Specially aggravated breaking out of dwelling-house after serious indictable offence is a crime under section 109(3) of the Crimes Act 1900, which carries a maximum penalty of 25 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 special 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 special aggravation’ are where you:

1. Intentionally wounded or intentionally inflicted grievous bodily harm, or
2. Inflicted grievous bodily harm and were reckless as to causing actual bodily harm, or
3. Were armed with a dangerous weapon.

‘Grievous bodily harm’ is defined as ‘very serious harm’, it includes, but is not limited to:

1. Any permanent or serious disfigurement
2. The destruction of a foetus, other than by a medical procedure, and
3. Any grievous bodily disease.

A ‘dangerous weapon’ is defined as:

1. A firearm or imitation firearm
2. A prohibited weapon, or
3. A spear gun.

Defences to the charge include:

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