UNLAWFUL ENTRY ON INCLOSED LAND

What is Unlawful Entry on Inclosed Land?

Unlawful entry on inclosed land occurs when a person 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.

Some examples of unlawful entry on inclosed lands include

·         Climbing onto someone's balcony;

·         Remaining in a place such as a hospital after you’ve been directed to leave; and

·         Opening a gate and walking up to the front door of a house to drop off a pamphlet which has a sign stating, “No Trespassers”

Case law/Jurisdiction

An offence of unlawful entry on inclosed lands is a summary offence and to be dealt with in the Local Court.

the law

The offence of Unlawful Entry on Inclosed Lands is contained in Section 4 of the Inclosed Lands Protection Act 1901(NSW) and states:

“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”

What must the prosecution prove?

Since Unlawful Entry on Inclosed Land is a criminal offence, the burden of proof lies on the Prosecution. The prosecution must prove the Accused’s guilt beyond reasonable doubt. That is a high standard of proof that the prosecution must achieve before someone can be convicted of Unlawful Entry on Inclosed Land

To establish Unlawful Entry on Inclosed Land, the prosecution must prove each of the following matters beyond reasonable doubt:

·         That you entered land or remained on land without the consent of the owner; and

·         The land was inclosed.

If you are charged with the offence of Unlawful Entry on Inclosed Land what are your options?

National Criminal Lawyers have been successful in defending a number of Unlawful Entry on Inclosed Land charges where the prosecution could not establish each of the elements of Unlawful Entry on Inclosed Land. We have also achieved a number of non-convictions for Unlawful Entry on Inclosed Land charges.

NCL offer the following options for those who have been charged with Unlawful Entry on Inclosed Land:

1.     We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;

2.     NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;

3.    Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or

4.  Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Pleading guilty

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining a non-conviction or section 10.

Maximum penalty:

Unlawful Entry on Inclosed Land canbe punished with a fine of

·         10 penalty units in the case of prescribed premises, or

·         5 penalty units in any other case

Pleading Not Guilty

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing. A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.

National Criminal Lawyers have defended thousands of people charged with Unlawful Entry on Inclosed Land and are experts at these hearings.

Defences

Sometimes the elements of Unlawful Entry on Inclosed Land can be established however there also may exist a defence at law. Some of the possible defences available for those charged with Unlawful Entry on Inclosed Land can include:

·         To argue that you did not enter the land or that you did not remain on the land after the consent of the owner was withdrawn;

·         To argue that the land was not wholly inclosed; or

·         To argue that you had a lawful excuse for being on the land.

Statistics

The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:

“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.

For Unlawful Entry on Inclosed Land 70% of offenders received a fine.

POSSIBLE PENALTY’S

In NSW, a court can impose any of the following penalties for aUnlawful Entry on Inclosed Landcharge.

·         Fine

·         Section 10

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

·         Fine

·         New Conditional release Order (CRO)

Case studies

Our client was stopped by police wherein he gave them a fake name. When police asked for his correct details our client turned and ran through the yards of private residential premises. Police caught him and charged him with Unlawful entry onto inclosed lands. He pleaded guilty. No conviction was recorded for the unlawful entry on enclosed land offences.

Why National Criminal Lawyers

There are three reasons to choose National Criminal Lawyers

1. We get the results

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. We give a Senior Defence Lawyer guarantee

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

If you have been charged with any Unlawful entry of inclosed landsoffence our Team at National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes. Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.