Home invasion and aggravated home invasion are serious criminal offences under sections 77A and 77B of the Crimes Act 1958 (Vic). These offences are among the most serious property offences in Victorian law. They apply where a person commits a burglary of a home while acting in company with others, and either carries a weapon or a person is present in the home at the time.

Home invasion and aggravated home invasion are heard in the County Court Court of Victoria following committal proceedings. Aggravated home invasion carries a maximum penalty of life imprisonment — making it one of the most serious offences in Victorian law. At Angus Cameron and Partners, we have represented numerous clients facing these charges across all Victorian courts.

If you have been charged with home invasion or aggravated home invasion, it is important to engage an experienced lawyer immediately. These offences carry severe penalties and the legal issues involved are complex.

Home Invasion

Home invasion requires the prosecution to prove the following elements beyond reasonable doubt:

  • you committed a burglary of a home;
  • you entered the home in company with one or more other persons; and
  • either: at the time of entry you had with you a firearm, imitation firearm, offensive weapon, explosive or imitation explosive; or at any time while you were present in the home, another person (other than a co-offender) was also present.
Home

A “home” is broadly defined. It includes any building, part of a building or other structure intended for use as a dwelling. It also extends to: residential parts of commercial or industrial premises; motel or hotel rooms and other temporary commercial accommodation; rooming houses; rooms provided as accommodation in residential care facilities or hospitals; and caravans or other vehicles or vessels used as a residence.

Burglary of a home

The prosecution must first establish that you committed a burglary — that is, that you entered the home as a trespasser with the intention of stealing or committing a serious offence inside. The elements of burglary apply in full. For more detail, see the Burglary and Aggravated Burglary guide.

In company

You must have entered the home in company with at least one other person. Acting “in company” means more than simply being present together. The other person must have shared the common purpose of committing the offence, been physically present, and actually contributed or been in a position to contribute to the offence — whether by supporting, emboldening or reassuring you, or by intimidating the victim.

Armed limb — weapon at time of entry

For the armed limb, the prosecution must prove that you had a weapon with you at the time of entry. The same principles apply as for aggravated burglary — the article must have been in your possession or readily available for use, and you must have known it was with you. The weapon categories are the same: firearms, imitation firearms, offensive weapons, explosives and imitation explosives.

Person present limb

For the person present limb, the prosecution must prove that at some point while you were in the home, a person other than a co-offender was present. Unlike aggravated burglary, it does not matter whether you knew or were reckless about whether a person would be present — the mere fact of their presence is sufficient.

Aggravated Home Invasion

Aggravated home invasion is the most serious form of this offence. The prosecution must prove the following elements beyond reasonable doubt:

  • you committed a burglary of a home;
  • you entered the home in company with two or more other people;
  • at the time of entry, you had with you a firearm, imitation firearm, offensive weapon, explosive or imitation explosive;
  • at the time of entry, you knew or were reckless as to whether another person (other than a co-offender) was or would be present in the home while you were there; and
  • while you were in the home, such a person was in fact present.
Key differences from home invasion

Aggravated home invasion differs from home invasion in three important ways: you must have entered with two or more others (not just one); both the armed limb and the person present limb must be satisfied simultaneously; and you must have known or been reckless about the presence of another person — unlike home invasion, where the person present limb requires no such knowledge.

Defences

Being charged with home invasion or aggravated home invasion does not necessarily mean you will be convicted. There are several defences that may apply depending on the circumstances.

No burglary

If the prosecution cannot establish the underlying burglary — for example, because you were not a trespasser or did not have the relevant intention at the time of entry — the home invasion charge cannot succeed.

Not acting in company

If you were not acting in company in the relevant sense — for example, if others present did not share the common purpose or were not in a position to contribute to the offence — this element may not be made out.

No knowledge or recklessness as to person present (aggravated home invasion)

For aggravated home invasion, if you did not know and were not reckless about whether another person would be present, the knowledge element of that charge may not be established, though you may still face a home invasion charge.

Insufficient evidence or improperly obtained evidence

The prosecution must prove each element beyond reasonable doubt. If the evidence is weak on any element, or was obtained unlawfully, there may be grounds to challenge the prosecution’s case. These are technical arguments that require experienced legal advice.

FAQs

What is the difference between burglary and home invasion?

Burglary involves entering any building as a trespasser with intent to commit a serious offence. Home invasion is a more serious offence that specifically involves a burglary of a home, committed in company with at least one other person, and where either a weapon is carried or another person is present. Home invasion is treated more seriously because of the particular vulnerability of people in their own homes.

What counts as a “home” for these offences?

The definition is broad. It includes houses and apartments, but also motel and hotel rooms, residential care facilities, caravans and other vehicles or vessels used as a residence. It even includes the residential part of commercial premises.

What is the difference between home invasion and aggravated home invasion?

Home invasion requires entry in company with at least one other person, and either a weapon or a person present. Aggravated home invasion requires entry in company with at least two other people, and both a weapon and a person present, and the accused must have known or been reckless about the presence of that person.

What are the penalties for home invasion and aggravated home invasion?

Home invasion carries a maximum penalty of 25 years imprisonment. Aggravated home invasion carries a maximum of life imprisonment. These are among the most serious offences in the Crimes Act 1958 (Vic).

Do I need a lawyer if I'm charged with home invasion?

Absolutely. Home invasion and aggravated home invasion are extremely serious charges carrying severe penalties up to life imprisonment. An experienced criminal lawyer is essential to protect your rights and ensure every available defence is properly considered.

Is home invasion an indictable offence in Victoria?

Yes. Home invasion and aggravated home invasion are strictly indictable offences heard in the County Court of Victoria, following committal proceedings in the Magistrates’ Court.

Can I get bail if charged with home invasion?

Home invasion and aggravated home invasion are is a Schedule 1 offences under the Bail Act 1977, meaning you must demonstrate a exceptional circumstances why your continued detention is not justified. The court will also consider whether you pose an unacceptable risk. We make urgent bail applications and present the strongest possible cases for our clients.

What is the average sentence for home invasion in Victoria?

Sentences vary significantly depending on whether weapons were involved, whether anyone was present, the degree of planning, any injury caused, and the offender’s personal history. We can provide a realistic assessment of likely sentencing outcomes once we have reviewed the full facts of your matter.

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