ACT’s ‘three strikes for burglary’ policy – when is a burglary not a burglary?

Here in Gisborne, where I reside, burglary is endemic. The East Coast has, so I am told (by the Judiciary, no less), the highest rate of burglary in New Zealand, on an even par with Manukau. The Judiciary has declared war on burglary here, which is fair enough (although it certainly makes it rather more difficult to keep my clients out of prison on second or subsequent burglary convictions).

ACT’s policy of having three strikes for burglary (with a minimum sentence of three years’ imprisonment for a third strike) is therefore undoubtedly attractive to the good, law abiding citizens of Gisborne. Not so attractive, perhaps, for the less law abiding ones…

My issue is that sometimes a burglary is not a burglary.

The definition of “burglary” in s 231 of the Crimes Act is astonishingly wide:

(1) Every one commits burglary and is liable to imprisonment for a term not exceeding 10 years who—

(a) enters any building or ship, or part of a building or ship, without authority and with intent to commit an imprisonable offence in the building or ship; or

(b) having entered any building or ship, remains in it without authority and with intent to commit an imprisonable offence in the building or ship.

(2) In this section and in section 232, building means any building or structure of any description, whether permanent or temporary; and includes a tent, caravan, or houseboat; and also includes any enclosed yard or any closed cave or closed tunnel.

To most people’s minds, the usual concept of a burglary involves an offender breaking into a home or business, taking what they can find, and leaving. But you don’t have to enter a building to commit a burglary – just being in an enclosed yard can be enough. And you don’t even have to steal or intend to steal anything.

Imagine this scenario, if you would: The local flasher sees a lady walking down the street towards him. Trenchcoat-clad for action, he ducks through an open gate into a fenced yard, ready to leap out and unveil himself in all of his supposed glory. But luck is not with our protagonist, for a passing police officer has spotted his sudden disappearance from the street and wanders over to investigate. Panicking, the would-be flasher tries to bolt, but hindered by his trenchcoat, he is easily apprehended and is taken down to the station for questioning, where he admits during a DVD interview that his intention was to leap out and reveal his genitals to the world.

A burglary? Surely not, one may cry. But the circumstances fit the elements of the Crimes Act definition. Our would-be flasher was in an enclosed yard, which fits the definition of a building, and he had no lawful authority to be in that yard. And he was there with the intention of committing the crime of indecent exposure, punishable by a maximum 3 months’ imprisonment pursuant to s 27 of the Summary Offences Act 1981.

So here’s my problem with ACT’s three strikes policy – is it really fair to throw someone in jail for a minimum three year sentence (assuming of course that our flasher had two prior strikes for “actual” burglaries), when the crime that they were intending to commit had only a three month maximum sentence?




  1. Reblogged this on Occasionally erudite and commented:

    So, as part of the post-Easter comedown, ACT have re-announced their ‘Three Strikes for Burglary’ policy. I’ve previously blogged on my issue with this policy, so here’s a lazy re-post of my reason why I oppose the policy in its current form.

  2. If you head over to Legal Beagle on Public address, he has some other interesting cases that fit the definition. Things like jumping a fence to use a neighbors spa pool? Putting your hand through a hole in a fence to obtain illegal drugs?

    1. Yep, there’s all sorts of ways one can be convicted of burglary without having any intention to actually a) enter a building or b) steal anything!

      Another concern I have is that the reporting of ACTs policy seems to indicate that you can pick up two strikes in one go, if you’re being sentenced for a spree of burgs. Not sure whether that’s sloppy reporting or not though.

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