Trespass Offences and Penalties in New South Wales (NSW)

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In New South Wales (NSW), it is the right of any landowner to determine if they want people stepping onto their property or not. If a landowner chooses to ban any form of intrusion and a person goes against this instruction, then that individual may be guilty of trespassing.

The laws and penalties regarding the crime of trespass are governed by the Inclosed Land Protection Act 1901 (NSW) and the Crimes Act 1900 (NSW). Primarily, in NSW, the crime of trespassing attracts various fines. However, under certain circumstances, trespassing can result in a jail term.

This writeup will discuss the various aspects of trespassing according to the different Acts. Consequently, this will involve the actions that constitute the crime of trespassing, the penalties and possible defences.

If an individual is convicted for a Trespass offence, the offence will show up as a disclosable court outcome (DCO) on a Nationally Coordinated Criminal History Check.

What are the Actions That Constitute the Crime of Trespassing?

In the state of NSW, a person can become guilty of trespassing when they carry out specific acts.

These actions are:

#1. Unlawful Entry on Inclosed Land

Section 4 of the Inclosed Land Protection Act 1901 (NSW) makes it a crime for any person to unjustifiably go into an inclosed land without obtaining consent from the landowner or anyone in charge of the property. An inclosed land refers to prescribed premises or public/private land that has any form of construction that delineates its boundaries.

Also, in this section, it is illegal for an individual to remain on a property after receiving an instruction to leave. Committing any of these offences attracts a maximum of 5 penalty units.

However, if the offender trespassed on a prescribed land, the maximum sentence would be ten penalty units. Here, a prescribed land means a government school, non-government school, hospital, child care service or nursing home.

#2. Unlawful Reentry on Inclosed Land

Under Section 4AA of the Inclosed Land Protection Act 1901 (NSW), it is an offence for an individual to inexcusably go into an event venue during an organised event in violation of the reentry prohibition order that they have received. Disobeying this order carries a maximum of 10 penalty units.

A reentry prohibition refers to an order given by an event organise instructing an individual not to enter a particular venue during the event. The order could be orally or in writing. Also, the order must give details of the person in charge of the event, the venue, the reason for prohibition and consequences of infringement.

#3. Remaining on Inclosed Land

Based on Section 4A of the Inclosed Law Protection Act 1901 (NSW), it is illegal for a person to remain and conduct themself in a manner that is offensive on an inclosed land after receiving a directive to leave.

The punishment for this crime is ten penalty units. But, if the offender committed this offence on a prescribed land, then the maximum sentence would be 20 penalty units.

#4. Aggravated Unlawful Entry on Inclosed Lands

Section 4B of the Inclosed Law Protection Act 1901 (NSW) establishes the conditions under which unlawful entry can become aggravated. An aggravated unlawful entry refers to a scenario involving a person unjustifiably entering an inclosed land on which there is an ongoing business activity and disrupting the entire process, consequently putting the safety of others at risk.

An aggravated unlawful entry carries a maximum of 50 penalty units. However, if the offender enters agricultural land, they may face a maximum of 120 penalty units or imprisonment for 12 months, and in some cases both.

#5. Leaving Gates Opened

It is an offence for any person to enter into an inclosed land belonging to another individual and wilfully leave the property's gates open without a reasonable excuse.

Any individual guilty of this crime may receive a maximum of 15 penalty units. This law is present in Section 5 of the Inclosed Law Protection Act 1901 (NSW).

Breaking and Entering Offences

Breaking and entering offences relates to the crime of trespassing. According to the Crimes Act 1900 (NSW), breaking and entering offences include:

#1. Breaking/Entering with the Intent of Committing a Serious Indictable Offence

Based on Section 112 of the Crimes Act 1900 (NSW), it is a criminal offence for a person to break or enter into a dwelling house or an apartment with the intention of committing a serious indictable offence. An offender under this section is liable to 10 years imprisonment.

#2. Entering a Dwelling House

Section 111 of the Crimes Act 1900 (NSW) states that it is a crime for an individual to enter a dwelling house having the intention of committing an indictable offence. The offence of entering a dwelling house comes with the penalty of 10 years imprisonment.

What are the Necessary Elements Needed to Prove the Crime of Trespassing?

There are some elements that the prosecution will have to show the court to prove that the accused committed the crime of trespassing. These elements include:

• The prosecutor is the lawful owner of the property or the individual in charge of the property.
• The accused entered the land without seeking any form of permission.
• The defendant intentionally refused to heed the instruction of the landowner to leave their property.

Possible Defences to the Crime of Trespassing

There are several defences that the accused can raise when facing charges for a particular crime. However, for the defence raised to be effective, it must be a suitable response to the accusation.

Specifically, in a trial for the crime of trespassing, there are some possible defences that a defendant can raise. These defences include:

• Consent

The accused can claim that they got consent from the appropriate authorities before entering a particular property. Proving that they obtained permission from the landowner can result in the court dismissing the case.

• Necessity

The defence of necessity has to do with the accused showing the court that they committed the crime of trespassing in the process of responding to an immediate threat or danger. However, the accused will have to convince the court that any reasonable person in their position would have taken similar action.

The Court that Handles Trespassing Trials

Primarily,, the Local Court often conducts trials for trespassing.

Bottom Line

A person can commit the crime of trespassing without being aware. But with adequate knowledge of the laws regarding the crime of trespassing, an individual can take the proper steps to avoid fines or even imprisonment. But instead of an individual handling the matter on their own, it is best to seek the guidance of a legal expert.

Will a Trespass Offence show up on a Nationally Coordinated Criminal History Check?

If an individual is found guilty of a trespass offence, the offence will show up as a disclosable court outcome (DCO) on the results of their Nationally Coordinated Criminal History Check.

Individuals can obtain a Nationally Coordinated Criminal History Check online via the Australian National Character Check - ANCC® website.

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