Trespassing offences are taken seriously within the NSW criminal justice system, with charges and penalties outlined in the Inclosed Lands Provision Act 1901 and the Crimes Act 1900. The team at Hamilton Janke Lawyers are competent and experienced in guiding an accused person through the criminal proceedings to ensure they receive the most favourable result.
What Constitutes Trespassing?
Entering onto inclosed lands without a lawful excuse or the occupier’s permission constitutes trespassing in NSW.
Depending upon the circumstances, trespassing can amount to a criminal offence that may result in a fine or, in some cases, imprisonment.
What are the Trespassing Laws in NSW?
The Inclosed Lands Provision Act 1901 prescribes rules and penalties relating to the protection of inclosed lands from intrusion and trespass. The Crimes Act 1900 outlines a number of ‘break and enter’ offences, which are crimes that usually include the element of trespass.
The Inclosed Lands Provision Act 1901 includes the following offences with respect to trespassing:
- Unlawful entry on inclosed lands;
- Unlawful reentry on inclosed lands;
- Offensive conduct while on inclosed lands;
- Aggravated unlawful entry on inclosed lands;
- Direct, incite, counsel, procure, commission or induce aggravated unlawful entry; and
- Leaving gate open.
Section 4 provides the first of these, and states that ‘Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty’.
This section notes that a ‘lawful excuse’ includes a person in charge of stock being driven on a road lawfully inclosed within the lands of any person entering those lands to prevent stock from straying, or regaining control of stock that have strayed, from the road.
Section 4A governs unlawful reentry on inclosed lands, stipulating that a person who, ‘without reasonable excuse, knowingly enters an event venue during an organised event in contravention of a re-entry prohibition given to the person is guilty of an offence.’ For the purpose of this offence, a ‘re-entry prohibition’ is a direction given by a responsible authority for an organised event, after a person has been directed to leave that event, that directs the person not to re-enter the venue during the organised event. This may be given orally or in writing.
Under s4A of the Inclosed Lands Protection Act 1901, it is an offence for any person to remain on upon inclosed land after being requested to leave and conducts themselves in an offensive manner while remaining.
Section 4B of the Act outlines aggravated forms of the offence under s4A in relation to inclosed lands on which any business or undertaking is conducted. Unlawful entry on inclosed lands under these conditions carries the highest penalties within the Act, including potential imprisonment.
Section 4C ensures that a person must not direct, incite, counsel, procure, commission or induce the commission, on agricultural land, of an offence under s4B (aggravated unlawful entry).
Finally, it is an offence under Section 5 to leave a gate open, either willfully or negligently.
For the purpose of these sections, ‘inclosed lands’ means either prescribed premises or any land, either public or private, inclosed or surrounded by any fence, wall, or other erection, or partly by a fence, wall, or other erection and partly by a canal or by some natural feature such as a river or cliff by which its boundaries may be recognised.
‘Prescribed premises’ means land occupied or used in connection with any of the following:
- A government school or a registered non-government school;
- A child-care service;
- A hospital;
- A nursing home; and
Any building or structure erected on that land being occupied or used for a purpose in connection with the conduct of such a school, child-care service, hospital, or nursing home.
Is Trespassing a Criminal Offence in Australia?
Trespassing is a criminal offence in Australia, but depending upon the circumstances it may be dealt with privately as a civil offence under the Inclosed Lands Protection Act 1901. The Act requires that any civil action against a person for any offence under the Act must be commenced within two months from the fact being committed.
In the alternative, the police may issue you with a Court Attendance Notice for this offence requiring you to appear in court before a Magistrate who will then have the discretion to impose a criminal conviction, fine, and potentially imprisonment as a penalty if you are found guilty.
What is the Difference Between Trespassing and Breaking and Entering?
While trespassing is an element of most offences for breaking and entering, such offences also involve the commission, or intention, of further criminal actions. These offences are always crimes and appear in Division 4 of the Crimes Act 1900. They include:
- Break, enter, and assault with intent to murder or inflict grievous bodily harm;
- Enter dwelling house with intent to commit a serious indictable offence;
- Break and enter any house and commit serious indictable offence; and
- Break and enter any house with intent to commit serious indictable offence.
These offences carry far greater penalties than those for trespass under the Inclosed Lands Protection Act 1901, particularly in circumstances of aggravation.
‘Break’ means to ‘forcibly gain access’: it is not ‘breaking’ to walk through an open door (in usual circumstances). This further distinguishes break and enter from trespass, as merely walking through an open door will constitute trespass in some instances.
Penalties for Trespassing in NSW
In NSW, the crime of trespassing primarily attracts various fines.
Anyone who commits the offence of unlawful entry on inclosed lands under s4 of the Inclosed Lands Protection Act 1901 is liable to a maximum penalty of 10 penalty units (currently $1,100) in the case of prescribed premises, or 5 penalty units (currently $550) in any other case.
For unlawful reentry on inclosed lands, the maximum penalty is 10 penalty units ($1,100).
Offensive conduct while on inclosed lands carries a maximum penalty of 20 penalty units in the case of prescribed premises ($2,200) or 10 penalty units ($1,100) in all other cases.
Aggravated unlawful entry on inclosed lands carries the most severe maximum penalties. For an offence that occurs on agricultural land there is a potential penalty of 120 penalty units ($13,200), or imprisonment for 12 months, or both, or 200 penalty units ($2,200) or imprisonment for 3 years, or both, if the offender was accompanied by 2 or more persons when the offence occurred, or the aggravating circumstances gave rise to a serious risk to the safety of any person on those lands. If an aggravated offence occurs on land other than agricultural land, the maximum penalty is 50 penalty units ($550).
The maximum penalty for the offence of direct, incite, counsel, procure, commission or induce aggravated lawful entry is 100 penalty units ($1,100) and/or imprisonment for 12 months. There is a maximum penalty of 15 units ($1,650) for leaving a gate open.
Under certain circumstances, trespassing can result in a jail term. As noted above, the offences that carry potential imprisonment under the Act are aggravated unlawful entry on inclosed lands under s4B and direct, incite, counsel, procure, commission or induce aggravated lawful entry under s4C. These offences carry maximum penalties of imprisonment for 3 years and 12 months, respectively.
Do You Get a Criminal Record for Trespassing in NSW?
If you are found guilty and convicted before the court for a trespass offence, this will appear on your Criminal Record.
However, if you are found guilty, depending on the circumstances the court may yet decide not to convict you and instead make an order under s10. This may result in a dismissal of the relevant charges, a discharge under a conditional release order, or a discharge on condition of participation in an intervention program. If the court chooses to make such an order, no conviction will be recorded against you.
What Happens If You Get Reported for Trespassing?
As noted, if you received a Court Attendance Notice for Trespassing you will be required to attend court and enter a plea with respect to the charge.
Alternatively, a police officer may choose to issue you with a penalty notice ‘on-the-spot’ under s10 of the Inclosed Lands Protection Act 1901 if it appears you have committed an offence under the Act. This will give you two options.
First, you can choose to pay this fine. If so, you will not be convicted and the matter will be concluded without you having to appear in court.
Your second option is to elect to have the penalty notice infringement heard in the Local Court and enter a plea of either guilty or not guilty. Pleading guilty will usually proceed to a sentence, while a plea of not guilty will go to a defended hearing. By either avenue, if the court finds you guilty you may receive a criminal conviction.
Defences for Trespassing NSW
‘Lawful excuse’ is a built-in defence within the legislation on trespassing. S4 of the Inclosed Lands Protection Act 1901 provides that if there is a lawful excuse, proof of which lies with the person entering or remaining on the inclosed lands, that person will not be found liable for a penalty.
Consent of the property owner is the most straightforward lawful excuse for trespass. If you have explicit permission to enter or remain on another’s property, you are not trespassing. This consent must be freely given and not obtained through fraud, coercion, or duress.
Necessity may also constitute a lawful excuse in some instances. This will require you to demonstrate to the court that you committed the crime of trespassing while responding to an immediate danger or threat or to prevent serious harm. You will have to convince the court, however, that any reasonable person in the same position would have taken a similar action.
Pleading Not Guilty to Trespassing NSW
1) Without lawful excuse;
2) Entered into inclosed lands:
- Without the consent of the owner, occupier or person apparently in charge of those lands; or
- Remained on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands.
If the prosecution is unable to prove any of the above elements to the requisite standard, you will be found not guilty of the offence.
Pleading Guilty to Trespassing NSW
If you agree with the allegations against you, pleading guilty may secure the best result. This demonstrates remorse and contrition and, if done at the earliest opportunity, entitles you to a 25% discount off on your sentence.
Burden of Proof
As trespassing is a criminal offence, the prosecution bears the burden of proof which is to the standard of beyond a reasonable doubt.
If you wish to argue a lawful excuse for your actions, however, you bear the onus of proof in this respect.
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