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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.

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