s77A Home Invasion

Elements of home invasion

For an accused person to be convicted of home invasion while armed or where a person is present, the prosecution must first prove that the accused committed a burglary of a home (s 77A(1)(a)).

The prosecution must prove the following elements for a jury to find an accused guilty of home invasion:

1. The accused committed burglary of a home;
   
   1. The accused entered a home;
   2. The accused did so as a trespasser;
   3. When the accused entered the home, the accused intended to commit an offence related to assault or property damage that is punishable by 5 years imprisonment or more;
2. The accused entered the home in company with one or more other persons; and
3. At that time:
   
   1. the accused was armed with a firearm, imitation firearm, offensive weapon, explosive or imitation explosive at the time; OR
   2. a person was present in the home.

The prosecution must prove each element beyond reasonable doubt for an accused person to be convicted of home invasion.

Burglary of a home

The first element that the prosecution must prove is that the accused committed a burglary of a home (see ss 76(1), 77A(1)(a)).

Home invasion may be considered a subtype of aggravated burglary, and there is a strong relationship between the elements of these offences (O’Brien (a Pseudonym) v The Queen).

The difference between burglary and home invasion is that home invasion is limited to a home, and burglary relates to any building.

Entered a home

The prosecution must prove that the accused “entered a home”. Home is defined in section 77A(5) and includes any building, other structure or any part of a building intended for residential use, whether temporary or permanent.

As a trespasser

The accused must have entered the home “as a trespasser” (as required by burglary (s 76(1)). That is, the prosecution must prove that the accused entered the home without any right or authority to enter or while being reckless as to whether they had any right or authority to enter (Barker v R).

Intended to commit an offence

The accused must have entered the home intending to commit a prescribed offence (see ss 76(1), 77A(1)(a)). Prescribed offences are:

1. Theft of anything in the home; or
2. An offence punishable by imprisonment of five years or more involving:
   1. An assault to a person in the home; or
   2. Any damage to the home or property in the home.

To satisfy this element, the prosecution must prove that the accused intended to commit the offence at the time of entry. It is not sufficient if the required intention was formed after the accused entered the building (R v Verde).

Home invasion ‘in company’

The second element is that the accused entered the home in company with one or more other persons (s 77A(1)(b)).

The phrase “in company” has not been clarified in Victoria but likely requires the offender to share a common purpose with secondary parties who are present and who contribute to the offending (R v Button & Griffen). For example, this element may be satisfied if the combined force of secondary parties confronts the victim, regardless of whether secondary parties intend to assist the accused (R v Leoni; R v Villar & Zugecic).

In other cases, if the victim is unaware of the presence of secondary parties, their physical presence and merely an intention to assist, if required, has been sufficient to prove the element of ‘in company’ (R v Leoni). However, participation with a common purpose without being physically present, such as being on the lookout or as an accessory before the act, is not enough to prove the element (R v Button & Griffen).

Under section 77A(4), a person may be found guilty of home invasion despite whether or not a secondary party or co-offender is prosecuted or convicted for the offending conduct.

‘Home invasion while armed’

The third element of ‘home invasion while armed’ under section 77A(1)(c)(i) is that, at the time of the home invasion, the accused had one of the following items with them:

1. A firearm;
2. An imitation firearm;
3. An offensive weapon;
4. An explosive; or
5. An imitation explosive.

The offence of Aggravated Burglary under section 77 defines these items in further detail.

An accused will have been armed if they knowingly had the weapon on their person or readily available for use during the home invasion (R v Hartwick (1985) 17 A Crim R 281).

‘Home invasion where a person was present’

The third element of ‘home invasion where a person present’, under section 77A(1)(c)(ii), is that a person was present in the home during the home invasion, other than the accused or assisting party.

The person may have been in their home at the time of entry by the accused or if they arrived while the accused was present (Criminal Charge Book).

For this element, it is not relevant whether the accused knew that a person was present (s 77A(2), distinguishing this offence from aggravated home invasion and aggravated burglary.

Defences to home invasion

If you have been charged with home invasion, you may have a valid defence, such as acting under duress or mistake of fact.

Penalties for home invasion

Home invasion under section 77A is liable to a maximum penalty of 25 years imprisonment.

A Category 2 offence under the Sentencing Act 1991 (Vic), home invasion is subject to the mandatory sentencing scheme in which a custodial order without a community corrections order must be imposed unless a ‘special reason’ applies.

In the higher courts, in the five years to 30 June 2021, the most common sentence for a charge of this offence was imprisonment (77% of charges), with the longest prison sentence 6.75 years and the shortest sentence of less than 1 month (Sentencing Advisory Council).

Where will my case be heard?

Charges for home invasion will generally be heard in the County or Supreme Court. In cases where the intent to steal was for property with a total value under $100,000, the case may be triable summarily in the Magistrates Court.

Charges of home invasion with intent to cause property damage or assault must be heard in the County or Supreme Court.

What to do if you have been charged

Home invasion is a serious charge, and if found guilty, the range of penalties, aggravating and potentially mitigating factors mean that it is crucial to seek legal advice as early as possible.

A legal practitioner with specialist experience defending home invasion charges is essential to navigate this serious area of the law, plan your defence and achieve the best possible outcome.