Robbery and Burglary Offences - ACT

In the ACT (Australian Capital Territory), Aggravated Robbery under the Criminal Code means committing a robbery with aggravating factors like doing it with one or more people (in company) or having an offensive weapon, which increases penalties significantly, often to 25 years imprisonment, compared to standard robbery. An offensive weapon is anything made or adapted to cause injury or used with intent to do so. 

1. Aggravated robbery is an offence under section 310 of the Criminal Code 2002 (ACT).
2. Aggravated Robbery carries a maximum penalty of a $400,000.00 fine, imprisonment for 25 years, or both.
3. Aggravated Robbery is indictable and is normally dealt with in the ACT Supreme Court but can be finalised in the ACT Magistrates Court if the prosecutor consents.

1. That you committed robbery with 1 or more people; or
2. That you committed robbery, and at the time of the offence, had an offensive weapon with you.

In challenging the prosecutor’s case for a conviction of aggravated robbery, a skilled lawyer will employ a tailored approach designed to undermine the prosecution’s evidence and arguments.

Q: How do the police prove robbery?

A: Robbery is proved if it can be found that you committed theft (dishonestly appropriated property belonging to someone else with the intention of permanently depriving the other person of the property) and that before, during or after the theft, you used force on someone else or threatened to use force then and there on someone else with the intent to commit theft or escape from the scene of the crime.

Q: What constitutes ‘property’?

A: The legal definition of property is quite broad. It includes any property of a tangible nature, including electricity, gas, water, a wild creature that is tamed or ordinarily kept in someone’s possession, and any organ or part of a human body or substance extracted from a human body.

Q: What is the legal definition of ‘dishonest’?

A: The legal definition of a dishonest act refers to what would be considered as dishonest as per the standards of ordinary people and as one known to the defendant to be dishonest according to the standards of ordinary people.

However, taking property belonging to another is not dishonest if you believe that the person to whom the property belongs could not be discovered by taking reasonable steps (this does not apply if you held the property as a trustee or personal representative).

Furthermore, taking someone else’s property can still be dishonest even if you or another person is willing to pay for it.

Determining whether you acted dishonestly is up to the trier of fact.

Q: What does it mean to appropriate property?

A: For someone to appropriate property, they must have assumed any of the rights of an owner to ownership, possession or control of the property, without the consent of a person to whom the property belongs.

If you came by the property (innocently or not) without committing theft, then appropriation occurs when, without any consent from the owner, you keep it or deal with it as the owner of the property.

If you receive property from a person in good faith, and then assume the rights of the owner that you believed were transferred to you with the property, then you cannot be found to have appropriated property due to a defect in the transferor’s title.

Q: What if it is unclear if the property belonged to someone else?

A: Many factors can make it unclear if the property belongs to someone else. If the property belongs to two or more people, then a reference to one of the people to whom the property belongs can be taken as a reference to each of them.

If property is subject to a trust, then the person to whom the property belongs can include anyone who has a right to enforce the trust. Further, an intention to defeat the trust is an intention to deprive any such person of the property.

Property of a corporation solely belongs to the corporation despite a vacancy in the corporation.

If person A receives property from or on account of someone else (person B) and is under a legal obligation to B to retain and deal with the property or its proceeds in a particular way, then the property or proceeds of the property belong to B, against A.

If person A gets property by a fundamental mistake and is under a legal obligation to make restoration (in whole or in part) of the property, then the property or its proceeds belong (to the extent of the obligation and against A) to the person entitled to restoration (person B). An intention not to make restoration is an intention to permanently deprive B of the property or the proceeds, and an appropriation of the property or proceeds without B’s consent. A fundamental mistake in this situation means either a mistake about the identity of the person getting the property, a mistake about the essential nature of the property or a mistake about the amount of any money (if the person getting the money is aware of the mistake when getting the money).

Q: How is it determined that I had the intention of permanently depriving another person of their property?

A: It will be found that you had the intention of permanently depriving another person of their property if the prosecution can prove that you appropriated property belonging to another person without meaning them to permanently lose their property and you intended to treat the property as your own to dispose of anyway, regardless of the owner’s rights over the property.

It can sometimes be difficult to determine whether actions taken are considered an attempt to treat the property as one’s own to dispose of.

For example, if you borrow or lend property belonging to another, the borrowing or lending can amount to treating the property as your own to dispose of regardless of the rights of the person lending the property to you. Nevertheless, you can only be seen as intending to permanently deprive if the borrowing or the lending is for a period and, in circumstances, equivalent to an outright taking or disposal.

Further, if you have possession or control (lawfully or not) of property belonging to another person, and you part with the property under a condition about its return that you may not be able to carry out, and that parting has been done for your own purposes and without the other person’s (the owner’s) authority, then that parting can be seen as treating the property as your own to dispose of, regardless of the owner’s rights.

There are also other circumstantial situations in which you may be considered by the courts to have intentionally permanently deprived someone else of property.

Q: What is the legal threshold for using force?

A: Using force can be defined as contact with another person that occurs without their consent and is thus deemed unlawful. The use of force could include the use of a weapon, the use of physical strength or violence as is sufficient to overcome, restrain, or injure a person, or physical harm sufficient to coerce or compel submission by the victim. It is important to note that if you used an offensive weapon, you will likely be charged with aggravated robbery rather than robbery.

Q: What is the legal threshold for threatening to use force?

A: You may still be found guilty of robbery if you threaten to use force on the victim. Even if no physical contact is made with the victim, if your words or actions cause the victim to fear or apprehend that you will use force on them, then you have met the criteria for threatening use of force. A lawyer could challenge the allegation of threatening use of force by:

1. Disputing Intent
2. Questioning Perception
3. Examining Evidence
4. Presenting Alternative Explanations
5. Challenging Witness Testimony
6. Utilising Legal Precedent
7. Presenting Mitigating Factors

Q: What is an offensive weapon?

A: An offensive weapon, as per the Criminal Code, includes:

• Anything made or adapted for use for causing injury to or incapacitating a person
• Anything that a person has with the intention of using, or threatening to use, to cause injury to or incapacitate someone else
• A firearm, or anything that may reasonably be taken in the circumstances to be a firearm
• A knife, or anything that may reasonably be taken in the circumstances to be a knife
• An explosive, or anything that may reasonably be taken in the circumstances to be or contain an explosive.

In the ACT (Australian Capital Territory), aggravated burglary means committing a standard burglary while with one or more other people, or having an offensive weapon (like a knife, firearm, or explosive) with you, leading to serious penalties, often up to 20 years imprisonment. It’s a more severe form of burglary, essentially making it riskier by adding accomplices or weapons, with “offensive weapon” broadly defined to cover anything made or adapted to cause harm, or intended for that use. 

1. Aggravated burglary is an offence under section 312 of the Criminal Code.
2. Aggravated burglary carries a maximum charge of a $320,000 fine, imprisonment for 20 years, or both.
3. Aggravated burglary is an indictable offence and is ordinarily finalised in the ACT Supreme Court but can be finalised in the ACT Magistrates Court if the prosecutor consents.

The prosecutor in an aggravated burglary case must prove either that the defendant committed burglary with one or more other people or that they committed burglary while carrying an offensive weapon. The prosecutor’s role is to present evidence and arguments to establish the defendant’s guilt beyond a reasonable doubt;

1. That you committed burglary (entered or remained in a building as a trespasser and committed theft or an offence causing harm or damage) with one or more other people; or
2. That you committed burglary and at the time of the burglary had an offensive weapon with you.

Your criminal defence lawyer’s role is to challenge the prosecution’s case and protect the defendant’s rights. They may question the evidence presented, cross-examine witnesses, and present counterarguments or defences to refute the prosecution’s claims. Ultimately, your defence lawyer aims to cast doubt on the prosecution’s case and secure the best possible outcome for you, the defendant, whether through acquittal, reduced charges, or a favourable plea bargain.

Q: What is the legal definition of a ‘trespass’?

A: The court defines trespass as the direct and wrongful interference by a person with another person’s property or goods. To be wrongful, it must be done voluntarily and without authorisation. There must also be a direct link between the trespasser’s actions and interference with another person’s property or goods.

Q: What is the legal definition of a ‘building’?

A: Under the Criminal Code, a building is defined as a part of any building, a mobile home or caravan or a structure (whether or not moveable), vehicle, or vessel, that is used, designed or adapted for residential purposes.

Q: What constitutes committing theft?

A: Under the Criminal Code, committing theft is seen as dishonestly appropriating property belonging to someone else with the intention of permanently depriving the other person of the property. The element of dishonesty is judged in relation to what would be considered as dishonest as per the standards of ordinary people and as one known to the defendant to be dishonest according to the standards of ordinary people. It is up to the trier of fact in the matter to determine whether or not you acted in dishonesty.

To appropriate property, you must have assumed any of the rights of an owner to ownership, possession or control of the property, without the consent of a person to whom the property belongs.

To intentionally permanently deprive someone of their property is to appropriate property belonging to another person without meaning them to permanently lose their property and you intended to treat the property as your own to dispose of anyway, regardless of the owner’s rights over the property.

Q: What is the legal definition of ‘property’? 

A: The legal definition of property is quite broad. It includes any property of a tangible nature, including electricity, gas, water, a wild creature that is tamed or ordinarily kept in someone’s possession, and any organ or part of a human body or substance extracted from a human body.

Q: What constitutes ‘harm’? 

A: Harm, as per the Criminal Code, can include both physical harm and psychological harm. Physical harm to a person includes unconsciousness, pain, disfigurement, infection with a disease and any physical contact with the person that they might reasonably object to in the circumstances. Harm to a person’s mental health includes psychological harm but does not include mere ordinary emotional reactions such as distress, grief, fear or anger.

It is irrelevant whether the harm is permanent or temporary. Harm does not include being subjected to any force or impact that is within the limits of what is acceptable incidental to social interaction or to life in the community.

Q: What constitutes ‘damage’? 

A: The Criminal Code considers damage in relation to property as including destroying the property, causing the physical loss of the property by interfering with the property, causing loss of a use or function of the property by interfering with the property, defacing the property, obliterating or making illegible the whole or part of the document if the property is a document, harming or killing animals if the property is an animal or cutting it from the land if the property is a plant or other thing forming part of land.

Q: What is an offensive weapon?

A: An offensive weapon, as per the Criminal Code, includes:

• Anything made or adapted for use for causing injury to or incapacitating a person
• Anything that a person has with the intention of using, or threatening to use, to cause injury to or incapacitate someone else
• A firearm, or anything that may reasonably be taken in the circumstances to be a firearm
• A knife, or anything that may reasonably be taken in the circumstances to be a knife
• An explosive, or anything that may reasonably be taken in the circumstances to be or contain an explosive.

The seriousness of charges involving offensive weapons, such as in cases of aggravated burglary, warrants the involvement of a skilled criminal defence lawyer.