Aggravated Home Burglaries – Three Strikes and You Are Out!

Aggravated home burglaries are considered one of the more serious criminal offences in Western Australia.

Under section 401(1) of the Criminal Code, the offence of home burglary carries a penalty of up to 18 years imprisonment.1 If the offence is carried out in circumstances of aggravation, the offender could face a term of up to 20 years imprisonment.2 To put that into perspective, only a handful of offences carry greater penalties. These include murder, armed robbery and arson.

In 1996, Parliament implemented the Three-Strike Home Burglary Policy (‘the Policy’), which introduced mandatory minimum sentences for repeat home burglary offenders (both adult and juvenile)3. Under the Policy, repeat offenders were penalised with a minimum of 12 months imprisonment upon their third conviction for a home burglary.

In 2001, the Department of Justice conducted a review of this third-striker legislation and found that the Policy was fundamentally ineffective and failed to reduce recidivism rates or deter crime4. The Policy “lacked any coherent justification”, was “ineffective in reducing crime”, caused injustice, distorted legal processes; and was “profoundly discriminatory in impact, especially on Aboriginal youth.”5

Despite the findings made by the Department of Justice referred to above, in 2014, the Criminal Law Amendment (Home Burglary and Other Offences) Bill (‘the Bill’) was introduced to, among other things, amend the counting rules for determining repeat offenders and to change the mandatory minimum penalties for third-strikers. The counting laws were amended so that burglary ‘strikes’ were counted by occurrence, not conviction appearance.

The Bill inserted two new sections into the Criminal Code, being:

  • section 401A, which provides a new definition for ‘relevant conviction’; and
  • section 401B, which refines the definition of a ‘repeat offender’.

The definition of ‘relevant conviction’ constitutes the revised counting rules for home burglary repeat offenders.6 The section also outlines the different rules for home burglaries which were committed before or after the commencement day of the Bill. The most significant change that section 401A brings to the counting rules is outlined in section 401A(3). This section provides that convictions for 2 or more burglaries committed on the same day, on or after the commencement of the Bill, are to be treated as a single strike. For example, if an offender commits 3 home burglaries on the same day, but is convicted of them on different days, he is not a third striker because of section 401A(3).

Multiple home burglary offences heard on the same day, but committed on different days, however, would count as separate strikes. Prior to the 2014 amendments, if an offender committed 3 burglaries on 3 separate days, and all 3 burglaries were dealt with on the same day in the same court, the convictions of all 3 burglaries would be counted as only one offence/strike for the purposes of the three-strike rule.

Under sections 401A and 401B, the changes to the counting rules and changes to the definitions of ‘relevant conviction’ and ‘repeat offender’ ensures that multiple offences dealt with in court on one day, would no longer be counted as a single strike. Each of the offender’s relevant convictions are to be counted as 1 strike each, regardless of whether they are heard separately or together. These sections remove the ability of the Court to use its discretion to sentence on a case-by-case basis, taking into account all of the offender’s antecedents. This means that an offender, with no criminal record, who comes before the court for committing three home burglaries on three separate days, would receive a minimum term of 2 years imprisonment (or 12 months imprisonment if juvenile offender).7  Not only does this legislation limit the discretion of the Judiciary, but there has been no convincing evidence that there has been a decrease in the number of home burglaries committed since the legislation was introduced in 2014.

The amendments to the Bill do, however, provide a possible ‘get out of a jail’ card for historical burglary offence.8 Where an offender commits a burglary and is convicted, he/she receives their first strike. Upon conviction of their second burglary, they receive their second strike. Section 401A(4) provides that, if the offender is then charged with a further burglary (the ‘current offence’), however that burglary was committed before the date of commission of latest prior relevant conviction, then the Court has a discretion to not count the current offence as a third relevant conviction, if there are exceptional circumstances. The factors that the Court may consider as exceptional include rehabilitation of the offender, employment prospects and the length of time during which the offender has not offended.

Where an offender has exhausted his/her third strike and is now considered a ‘repeat offender’, the court must impose a mandatory sentence of 12 months imprisonment for juveniles, and 2 years imprisonment for adults. The imposition of the mandatory sentence for home burglaries highlights the unjust nature of the rules, in that a trivial burglary may well attract a harsher penalty than a violent sexual assault.

The reality of the changes under the new laws means that, regardless of whether someone had been a law-abiding citizen, appearing before the court for the very first time with a completely clean criminal record, or a career burglar appearing before the Court with a lengthy criminal record, imprisonment for a minimum of 2 years in either case is inevitable.


1. [Criminal Code Amendment Act 1996 (WA) s 401.]
2. [Ibid.]
3. [Western Australia, Parliamentary Debates, Legislative Assembly, 17 September 1996, 5412 (Kevin Prince)]
4. [Neil Morgan, Harry Blagg, and Victoria Williams, Aboriginal Justice Council, Mandatory Sentencing in Western Australia and the Impact on Aboriginal Youth (2001), 5-8.]
5. [Ibid.]
6. [Explanatory memorandum, Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014 (WA)]
7. []
8. [Explanatory memorandum, Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014 (WA)]