Legal Beagle by Graeme Edgeler

19

Not burglary?

Yesterday the Otago Daily Times carried a story (reprinted by the New Zealand Herald) of a bunch of high school students who appear to have gotten drunk, and decided to have a party in the grounds of someone's holiday home, using their spa pool, urinating, and breaking bottles.

This probably not a unique occurrence, nor a particularly newsworthy one outside of Queenstown, but it gives me a good example of a concern I expressed in an earlier post On Burglary, or: Dropping the Ball.

Police say they are investigating the students with a view to laying charges of being unlawfully on property (maximum penalty 3 months prison, or a $2000 fine). That's probably the right level of offence, but there is a problem with it. An element of that offence is that you have to be "found" on the property, and it appears these students weren't. There's also a defence to the charge if they can prove that they weren't intending to commit a crime (but more on this later).

The problem I have with these facts, is that following recent changes to the Crimes Act, what we have isn't being unlawfully on property, but burglary (maximum 10 years imprisonment). Burglary used to be entering (or staying) in a building (which includes an enclosed yard) with the intention to commit a crime. It's now entering (or staying) in a building (which includes an enclosed yard) with the intention of committing an imprisonable offence. And wouldn't you know, but breaking glass (which was not a "crime" under the old law) is an imprisonable offence under the Litter Act 1979 (maximum penalty 1 month imprisonment, or a $7500 fine).

With the law change, the majority of factual situation where someone could properly be convicted of being unlawfully on property (which includes buildings, ships, and enclosed yards) will now also constitute burglaries. Possession of a weapon during these burglaries (perhaps a broken bottle?), will mean there's a strike-eligible offence of aggravated burglary.

Burglary charges probably will be very rare, and aggravated burglar charges rarer still, but there was surely a better way of amending the definition of burglary than one which opens up the intention requirement to all imprisonable offences. Most importantly, we should not have to rely on police discretion to minimise the consequences of overly broad law-making.

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