The offences of Robbery and Break and Enter carry significant terms of imprisonment and often lead to sentences of full-time imprisonment.

If you have been charged with Robbery or a Break and Enter offence, call the team at Australian Criminal Defence to help you and advise you on the next steps that you need to take.

The different offences which you may be charged based on an allegation of robbery are as follows:

  1. Robbery or stealing from the person.
  2. Aggravated robbery
  3. Aggravated Robbery with wounding
  4. Armed robbery or robbery in company
  5. Armed robbery or robbery in company resulting in wounding

ROBBERY OR STEALING FROM THE PERSON

THE OFFENCE:

Section 94 of the Crimes Act 1900 (NSW) provides the offence of robbery. The prosecution must prove the following elements beyond a Fdppreasonable doubt in order to convict you of this offence:

  1. That you stole something from another person.
  2. The property was taken from another person or in the presence of another person.
  3. You used violence or the threat of violence in taking the property from the other person.

 

WHAT CONSTITUTES STEALING?

The prosecution must prove that you took and carried away property of another person without their permission and did not intend to return the property to the owner.

 

WHY ONLY FROM OR IN THE PRESENCE OF ANOTHER PERSON?

The charge of robbery requires that the property be taken from or in the presence of another person, this is because the offence of robbery is broadly defined as stealing from a person, in the circumstance where you are stealing from an empty block of land, this would likely be a break and enter offence rather than robbery.

 

VIOLENCE?

This would often be a threat of violence either physical or verbal which occurs for the purpose of obtaining property from another person.

 

I AM NOT GUILTY OF THE OFFENCE, HOW CAN I BEAT THE CHARGE?

  1. You didn’t steal the property.
  2. The property was taken with the consent of the person it was taken from.
  3. You had a genuine belief as to a claim of right over the property.
  4. You didn’t use a threat of violence in taking the property.

 

AGGRAVATED ROBBERY

THE OFFENCE:

Section 95 of the Crimes Act 1900 (NSW) provides the offence of aggravated robbery. The prosecution must prove the following beyond reasonable doubt:

  1. That you stole something from another person.
  2. The property was taken from another person or in the presence of another person.
  3. You used violence or the threat of violence in taking the property from the other person.
  4. That the robbery occurred in a circumstance of aggravation.

 

WHAT IS A CIRCUMSTANCE OF AGGRAVATION?

A circumstance of aggravation means something immediately before, or at the time of or immediately after the robbery that involves any of the following:

a)      The use of corporal violence on a person; or

a.      This would include physical injury to another person

b)      The alleged offender intentionally or recklessly inflicts actual bodily harm on any person; or

a.      Actual bodily harm refers to harm (either physical or mental) which interferes with the health or comfort of the victim and must be more than transient or trifling.

c)      The alleged offender deprives any person of his or her liberty.

a.      Holding someone against their will or doing something to restrict their freedom of movement.

I AM NOT GUILTY OF THE OFFENCE, HOW CAN I BEAT THE CHARGE?

  1. You didn’t steal the property.
  2. The property was taken with the consent of the person it was taken from.
  3. You didn’t use a threat of violence in taking the property.
  4. You didn’t commit the offence in a circumstance of aggravation.

AGGRAVATED ROBBERY WITH WOUNDING

THE OFFENCE:

Section 96 of the Crimes Act 1900 (NSW) provides the offence of aggravated robbery with wounding. The prosecution must prove all of the following beyond reasonable doubt:

  1. That you stole something from another person.
  2. The property was taken from another person or in the presence of another person.
  3. You used violence or the threat of violence in taking the property from the other person.
  4. That the robbery occurred in a circumstance of aggravation.
  5. That you wounded or inflicted grievous bodily harm on another person.

 

WHAT IS WOUNDING?

Wounding is not defined by the Crimes Act 1900 (NSW), but the courts have defined it as follows:

  1. It involves the breaking of the skin (R v Sheppard [2003] NSWCCCA 351 at [31]).
  2. Even if the breaking of the skin is small or insignificant, the definition is still satisfied (R v Hooper [2004] NSWCCA 10 at [36]).
  3. It need not be caused by a weapon (R v Sheppard [2003] NSWCCA 351 at [32]

 

WHAT ARE COMMON EXAMPLES OF WOUNDING

  1. A punch, slap, push, scratch or kick that results in a breaking of the skin such as a busted lip or a cut.
  2. The reckless use of a knife or other sharp object results in a breaking of the skin such as a busted lip or a cut.

 

WHAT IS GRIEVOUS BODILY HARM?

GBH is defined by section 4(1) of the Crimes Act 1900 (NSW), it includes any permanent or serious disfigurement of the person, the destruction of a foetus and any grievous bodily disease”. It is not limited to this and may also extend to a grievous bodily disease.

 

WHAT ARE COMMON EXAMPLES OF ASSAULT OCCASIONING GBH?

  1. A punch, slap, push or kick where a broken tooth, bone or internal bleeding results from the conduct.
  2. The reckless infection of another person with a potentially life-threatening sexually transmitted infection.

 

I AM NOT GUILTY OF THE OFFENCE, HOW CAN I BEAT THE CHARGE?

  1. You didn’t steal the property.
  2. The property was taken with the consent of the person it was taken from.
  3. You didn’t use a threat of violence in taking the property.
  4. The robbery was not done in a circumstance of aggravation.
  5. You didn’t wound the person or cause grievous bodily harm.

 

ARMED ROBBERY OR ROBBERY IN COMPANY

THE OFFENCE:

Section 97 of the Crimes Act 1900 (NSW) provides two offences of aggravated robbery with wounding. The prosecution must prove all of the following beyond reasonable doubt for both offences

  1. That you stole something from another person.
  2. The property was taken from another person or in the presence of another person.
  3. You used violence or the threat of violence in taking the property from the other person.
  4. In addition, either of the following:
    1. That there was at least one other person physically present and involved in committing the robbery, OR
    2. That you were armed with an offensive weapon or instrument.
    3. (For the aggravated armed robbery offence) The weapon carried is a ‘dangerous weapon’.

 

OTHER PERSON INVOLVED IN THE ROBBERY?

Where the prosecution asserts that the robbery was in the company of another person, it is not enough that the person is an innocent bystander, nor is it enough that the person participated in the offence without being physically present.

OFFENSIVE WEAPON OR INSTRUMENT:

Where the prosecution assert that you were armed with an offensive weapon or instrument when the robbery occurred, the prosecution must prove that you had an object which has the potential to inflict harm upon another person. This extends beyond firearms, knives, blades etc to items that in certain contexts may be used as a weapon such as a motor vehicle or a glass bottle or a cricket bat.

DANGEROUS WEAPON?

A dangerous weapon is defined to include:

a)      A firearm or an imitation firearm (EXAMPLES INCLUDE: a machine gun, sub-machine gun, self-loading shotgun, pump-action shotgun etc.)

b)      A prohibited weapon (EXAMPLES INCLUDE: knives, bombs, grenades, missiles, cross-bows, slingshots, whips, nunchakus, batons, tasers etc.)

c)      A spear gun.

I AM NOT GUILTY OF THE ROBBERY OR BURGLARY OFFENCE, HOW CAN I BEAT THE CHARGE?

  1. You didn’t steal the property.
  2. The property was taken with the consent of the person it was taken from.
  3. You didn’t use a threat of violence in taking the property.
  4. Neither of the following circumstances applies:
  5. That there was at least one other person physically present and involved in committing the robbery, OR
  6. That you were armed with an offensive weapon or instrument.

 

ARMED ROBBERY OR ROBBERY IN COMPANY RESULTING IN WOUNDING

THE OFFENCE:

Section 98 of the Crimes Act 1900 (NSW) provides an offence for armed robbery or robbery in company resulting in wounding. In essence, it is a combination of section 96 and section 97 offences. The prosecution must prove all of the following beyond reasonable doubt for this offence:

  1. That you stole something from another person.
  2. The property was taken from another person or in the presence of another person.
  3. You used violence or the threat of violence in taking the property from the other person. In addition, either of the following:
    1. That there was at least one other person physically present and involved in committing the robbery, OR
    2. That you were armed with an offensive weapon or instrument.
    3. That you wounded or inflicted grievous bodily harm on another person.

 

I AM NOT GUILTY OF THE OFFENCE, HOW CAN I BEAT THE CHARGE?

  1. You didn’t steal the property.
  2. The property was taken with the consent of the person it was taken from.
  3. You didn’t use a threat of violence in taking the property.
  4. Neither of the following circumstances apply:
    1. That there was at least one other person physically present and involved in committing the robbery, OR
    2. That you were armed with an offensive weapon or instrument.
    3. You didn’t wound the person or cause grievous bodily harm.

 

BURGLARY OFFENCES (BREAK AND ENTER OFFENCES):

A person may also be charged with break and enter offences where they commit similar acts to those described above however, they steal from a property instead. These are often known as break and enter offences; a list of the offences is as follows:

  1. Break out of a dwelling-house after committing or entering with intent to commit, an indictable offence (section 109 Crimes Act)
  2. Break, enter and assault with intent to murder (Section 110 Crimes Act)
  3. Enter a dwelling house with intent to commit a serious indictable offence (Section 111 Crimes Act)
  4. Break, enter and commit a serious indictable offence (Section 112 Crimes Act)
  5. Break and enter with intent to commit a serious indictable offence (Section 113 Crimes Act)
  6. Being armed with intent to commit an indictable offence (Section 114 Crimes Act)
  7. Being a convicted offender armed with intent to commit an indictable offence (Section 115 Crimes Act).

 

I’M GUILTY, WHAT NEXT?

If you are guilty of any of the above offences, your specialist lawyer Australian Criminal Defence will help prepare your defence including references, expert reports, apology letters, and evidence of rehabilitation. The next step is that you will be sentenced. The table below shows the relevant penalty for each offence. For all offences dealt with in the local court, the maximum penalty is 2 years imprisonment. For matters dealt with in the District or Supreme Court (on indictment), the maximum penalty is as displayed below.

 

Offence Summarily dealt with Dealt with on Indictment
Robbery or stealing from the person 2 years imprisonment 14 years imprisonment
Aggravated robbery 20 years imprisonment
Aggravated robbery with wounding 25 years imprisonment
Armed robbery or robbery in company 20 years imprisonment
Armed robbery or robbery in company with a dangerous weapon 25 years imprisonment
Armed robbery or robbery in company resulting in wounding 25 years imprisonment

The maximum penalties are reserved for the “worst category” of offenders (Veen v The Queen (No 2) (1988) 164 CLR 465 at 478) and are not commonly utilised by the court. A court has the discretion to sentence an offender in accordance with the Crimes (Sentencing Procedure) Act 1998 (NSW).

 

DEFENCES

DURESS

The defence of duress is available in circumstances where the accused person is threatened in a way where they are forced to commit a crime against their will. It requires four things to be shown, once the defence is raised, the prosecution must disprove beyond reasonable doubt that the defendant was not acting under duress:

  1. An actual threat was made to the accused
  2. The threat was serious enough to justify the accused’s actions
  3. The threat was acting on the mind of the accused at the time of the offence
  4. The threat was continuing

CLAIM OF RIGHT

A person will have a claim of right where a genuine belief is held that you have a claim of right to certain property. Once raised, the prosecution must prove that you didn’t have a claim of right beyond a reasonable doubt. Various principles exist to guide the scope of whether a person has a ‘claim of right’ defence:

  1. Must be one that involves a genuine subjective belief as to your right to property held by another.
  2. This must be an understanding of a legal entitlement rather than some kind of moral entitlement.
  3. It extends to something of equivalent value, it is not required that the person reclaim the precise product they believe is theirs (for example, if you believe that person B stole a $50 note from you, it is not necessary you take back that exact $50 note, another $50 note of the same value would suffice).

NECESSITY

The defence of necessity is available in circumstances where the accused is incited in some way (often by a threat or identification of potential harm) to break the law to avoid even more dire consequences. The defendant must show the following (R v Loughnan [1981] VR 443 at [448]:

a)      The criminal act must have been done in order to avoid consequences of irreparable evil upon the accused or others whom they were bound to protect

b)      The accused must honestly have believed on reasonable grounds that they were placed in a situation of imminent peril; and

c)      The acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided

Robbery/Burglary Case Studies

  • Our client was charged with 3 offences of Armed Robbery with a firearm. Our client denied the use of firearms. After extensive negotiation with the Director of Public Prosecutions, the Director agreed to replace the offences with the lesser charges of Robbery.  The matter proceeded to sentence at the Sydney District Court and our client was sentenced to a 3-year Intensive Corrections Order. Our client avoided full-time custody.
  • Our client was charged with the robbery of a shopkeeper at a petrol station. Our client denied the allegation. We briefed one of Sydney’s reputable barristers to appear at the trial at Parramatta District Court.  Our client was found NOT guilty after a 4-day trial.
  • Our client was charged with the Robbery of a local shopkeeper. Our client denied the allegation. After extensive negotiations, the prosecutor agreed to drop the robbery charge and replace it with a larceny charge.  The matter remained in the local court for sentence and our client was sentenced to a conditional release order without conviction.
  • Our client was charged with the break and enter of a factory in his local area. Our client denied the allegation and the matter proceeded to a 3 day trial at Penrith District Court.  The jury returned a NOT guilty verdict in 2 hours.
  • Our client was charged with 4 offences of break and enter and steal. Our client had an extensive criminal record and drug addiction.  Our diligent preparation of the matter including referring our client to drug-related rehabilitation resulted in our client avoiding a full-time custodial sentence at the Campbelltown District Court.

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