The Offence of Being Armed With Intent to Commit an Indictable Offence

There is a universally held belief that citizens should bear no fear when participating in their community or within their place of residence. Often citizens are faced with circumstances whereby an offender will inhibit their ability to peacefully enjoy their community or place of residence by intimidating the citizen with a weapon or entering their premises with the intent to commit an indictable offence.

The offence of intimidating an individual whilst possessing a weapon and/or breaking into premises without lawful excuse is governed by s 114 of the Crimes Act 1900 (NSW) which stipulates as follows:

(1) Any person who:

(a) is armed with any weapon, or instrument, with intent to commit an indictable offence,

(b) has in his or her possession, without lawful excuse, any implement of housebreaking or safebreaking, or any implement capable of being used to enter or drive or enter and drive a conveyance,

(c) has his or her face blackened or otherwise disguised, or has his or her possession the means of blackening or otherwise disguising his or her face, with intent to commit a serious indictable offence,

(d) enters or remains in or upon any part of a building or any land occupied or used in connection therewith intent to commit an indictable offence in or upon the building,

Shall be liable to imprisonment for seven years.

What is the Maximum Penalty ?

Schedule 1 of the Criminal Procedure Act 1986 (NSW) permits an offence under s 114(1) to be dealt with summarily unless otherwise elected by the DPP. Should the offence be dealt with summarily in the Local Court, the maximum imprisonment which the offender is liable to is two years imprisonment rather than the maximum sanction of seven years imprisonment imposed if the matter is dealt with on indictment in the District Court.

What do the Prosecution Have to Prove ?

Put simply, an offence which has been committed under s 114(1) "merely requires the entering or remaining upon any part of a building or any land occupied or used in connection with such a building with intent to commit an indictable offence in or upon the building. An indictable offence can be anything from murder to common assault": R v McDowell [2019] NSWDC 441 at 10.

Subsection (a)

This subsection requires the offender to have been "armed with any weapon, or instrument, with intent to commit an indictable offence". To be found guilty of an offence under s 114(1)(a), the prosecutorial burden requires the prosecution to demonstrate beyond reasonable doubt that the offender was:

  1. Armed with a weapon, or instrument, within their immediate physical possession, and
  2. The possession of the weapon, or instrument, occurred without a lawful excuse, and
  3. The offender intended to assault and/or threaten the individual with the weapon or instrument; and
  4. The offender intended to commit an indictable offence. An offender is deemed to have intended to commit an indictable offence if they decide to enact their intentions and if it can be reasonably demonstrated that the offender can be seen to have foreseen the inevitable consequences of their conduct.

Essentially, the elements of an offence contrary to s 114(1)(a) is "that the offender has armed himself [or herself] with the intention of committing an assault [or another indictable offence]": R v Le [2019] NSWSC 633 at 58 per Adams J.

For example, in R v Le at, an assault commenced between two groups because of a fabricated conversation. During the altercation, Mr Le produced a knife and injured another individual. In his judgment, Adams J provided an interpretation of s 114(1)(a) and thence applied such interpretation to the matter at 58 as follows:

".the actus reus is being armed with the knife and the mens rea is the intention as to the use of that knife. The Crown case was that the intention was to put persons in fear. It is not an element of the offence that there be an actual assault although a subsequent assault would be evidence of the relative intention at the time".

Actual violence is not an element of an offence; however, presence of actual violence, fear of immediate personal violence or a threat of actual violence will constitute an aggravating factors during the sentencing of an offender and will add weight when the judicial officer is attempting to determine the objective seriousness which ought to be attributed to the offending conduct: R v Bonnell [2020] NSWDC 270 at 76. The degree of involvement of the weapon/instrument is imperative to determine whether the offender has planned or premediated the offending conduct and to establish the length in which the weapon/instrument was utilised: R v Bonnell at 76.

Essentially, it must be reasonably demonstrated that the weapon or instrument has been used by the offender to have threatened or instilled fear in the victim that further violence may have been inflicted against the victim: Sahartor v R [2018] NSWCCA 236 at 6. The instillation of fear may occur where a person:

".being armed, intends to cause fear of physical harm or mental harm to another person, that is whether or not the other person who is being subjected to that intention actually does have that fear": Sahartor v R [2018] NSWCCA 236 at 14.

It is commonplace for judicial officers to find intent on the part of an offender to commit an indictable offence where the weapon/instrument is concealed: R v Milligan [2019] NSWDC 562 at 39. /p>

Subsection (b) and (c)

These subsections require the prosecution to demonstrate beyond reasonable doubt that the offender was:

  1. Armed with any implement which may be utilised to break into a home, safe or vehicle, and
  2. Had in their possession items which could disguise their face or whether the offender actually had their face blackened at the time of the offending conduct; and
  3. The offender intended to utilise these implements to commit an indictable offence for which these tools purposed. In the case of the offence of breaking and entering a home, the judicial officer will consider the circumstances in which the offending conduct has occurred. These may include elements such as the nature of the weapon or instrument, whether the offence was committed in company, whether any violence has been inflicted against an individual or whether the liberty of an individual has been deprived.

Subsection (d)

There are many offences which govern the entry onto land without a lawful excuse, however s 114(1)(d) regulates offences of a more serious nature where the offender has unlawfully entered a premises or land with an intent to commit an indictable offence. To successfully prove an offence under this subsection, the prosecution must demonstrate beyond reasonable doubt that the offender has:

  1. Entered and/or remained on a premise or any land without lawful excuse; and
  2. Whilst the offender has remained on the premise or parcel of land, the offender has remained there with an intent to commit an indictable offence in or upon the building.

The offence of unlawful entry onto a premises or land with an intent to commit an indictable offence is often accompanied by other offences which are together committed in circumstances of aggravation. Upon consideration of other offences judicial officers are only inclined to assess offences for which the offender has actually committed rather than offences which may have occurred. This is because "an offence is not mitigated by the absence of features that would give rise to a more serious offence and when considering the range of offences within s 114(1)(d) it is important to bear in mind the constraints upon any findings of the seriousness of the offence": Roberts v R [2012] NSWCCA 232 at 14. To convict an offender of a more serious offence for which they have not been charged, or to consider elements of an offence for which "may have happened" would be to infringe the De Simoni principle founded in R v De Simoni (1981) HCA 31.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.