Section 425 of the Criminal Code Queensland provides:

(1) Any person who is found under any of the circumstances following, that is to say—

(a) being armed with any dangerous or offensive weapon or instrument, or a noxious substance, and being so armed with intent to break or enter a dwelling or premises, and to commit an indictable offence therein;

(b) having in his or her possession anything intended for use in or in connection with the commission of an offence defined in section 419 or 421;

(c) having in the person’s possession by night without lawful excuse, the proof of which lies on the person, any instrument of housebreaking;

(d) having in the person’s possession by day any such instrument with intent to commit an indictable offence;

(e) having his or her face masked or blackened or being otherwise disguised, with intent to commit an indictable offence;

is guilty of a crime, and is liable to imprisonment for 3 years.

(2) If the offender has been previously convicted of a crime relating to property, the offender is liable to imprisonment for 7 years.

To prove the offence, the police must show beyond a reasonable doubt that the accused was found by night (between 9:00 pm and 6 am), was in possession of an instrument of housebreaking and did not have a lawful excuse.

Generally, the matter is considered indictable (serious) and will be heard by the District Court. In some situations, it may also be heard in the Magistrates Court of Queensland.

There are defences that are available to an accused including duress, necessity, it was not night time, the accused was not in possession of the instrument f housebreaking or that it could not be used for this purpose or that the accused had a lawful excuse.

The maximum penalty for possession of housebreaking implement is 3 years imprisonment, however, if previously convicted in relation to property, the sentence could be a maximum of 7 years imprisonment. This is precisely why it is so important to engage one of our experienced criminal lawyers.