37. Burglary-family Offences — The Sexual-Intent Condition (Vic)¶
Scope and currency
Cheat sheet · ss 76, 77, 77A, 77B Crimes Act 1958 (Vic) · Serious Offenders Act 2018 (Vic) Schs 1–3 · Sentencing Act 1991 (Vic) Pt 2A · Sex Offenders Registration Act 2004 (Vic) Sch 2 · verified 12 August 2026
Starting point: burglary, aggravated burglary, home invasion and aggravated home invasion are property offences and carry no sexual-offence consequence on their face. Three separate regimes reach them, but only where entry was as a trespasser with intent to commit a sexual offence — and the three conditions are not the same. Work the gates in order.
The decision sequence¶
GATE 1 The threshold condition
Did the offender enter as a trespasser with intent to commit a sexual offence? → No: none of the three sexual regimes engage. The offence is a property offence only — go straight to Schedule 3 below, and check the Sch 2 cl 6 violence route. → Yes: go to Gate 2.
GATE 2 Which section is charged?
→ s 76 or s 77: all three regimes are in play. Go to Gate 3. → s 77A or s 77B: Serious Offenders Act 2018 Sch 1 only (items 46–47). Never registrable under SORA; never a Pt 2A sexual offence. Go to Gate 5.
GATE 3 Which sexual offence was intended?
→ An offence under Subdivs (8A)–(8FA), Div 1 Pt I Crimes Act 1958: Serious Offenders Act 2018 Sch 1 items 44–45 satisfied. → An offence in Sentencing Act 1991 Sch 1 cl 1(a)(i)–(ix) or (x)–(xvie): Pt 2A sexual-offence route satisfied (ss 76, 77 only).
GATE 4 The SORA narrowing
Was the intended sexual offence to be committed ON A CHILD? → Yes (s 76 or s 77): Class 2 registrable offence — SORA Sch 2 items 19–20. Reporting obligations follow automatically. → No (adult victim): not a Class 2 offence. ss 76 and 77 instead appear at Sch 4 items 8–9, and are Class 4 offences only if s 8(2) is satisfied — the offence was committed against a person other than a child AND the offender is already a serious sexual offender within s 8(3) (sentenced for two or more offences listed in a Schedule to the Act). Class 4 offences do not attract automatic registration; they are the pool for a s 11(1) discretionary order.
GATE 5 What sentence was imposed?
Both serious-offender regimes are sentence-gated; SORA registration is not. → Custodial sentence for the Sch 1 offence: eligible offender — the Secretary may apply for a post-sentence supervision or detention order. → Imprisonment or detention in a youth justice centre: serious sexual offender under Pt 2A (s 6B(2)). Community protection becomes the principal purpose (s 6D); presumptive cumulation (s 6E); proportionality may be disregarded. → Non-custodial: neither serious-offender regime engages. Registration is unaffected.
Three regimes at a glance¶
| Regime | Sections caught | The condition | Consequence |
|---|---|---|---|
| SOA 2018 Sch 1, items 44–47 | ss 76, 77, 77A, 77B | Entered as a trespasser "with intent to commit an offence against a provision of Subdivisions (8A) to (8FA) of Division 1 of Part I of the Crimes Act 1958" | Serious sex offence → eligible offender for a supervision or detention order on a custodial sentence |
| Pt 2A Sentencing Act 1991, Sch 1 cl 1(a)(xvii)–(xviii) | ss 76, 77 only | Entered as a trespasser "with intent to commit an offence referred to in subparagraph (i) to (ix) or (x) to (xvie)" | Sexual offence → serious sexual offender on imprisonment or youth detention (s 6B(2)); ss 6D, 6E |
| SORA Sch 2, items 19–20 | ss 76, 77 only | The same intent, but the intended offence must be committed on a child | Class 2 registrable offence → automatic reporting obligations |
| SORA Sch 4, items 8–9 | ss 76, 77 only | The same intent, adult victim — but a Class 4 offence only if s 8(2) is met: committed against a person other than a child AND by an offender already a serious sexual offender under s 8(3) | No automatic registration → the pool for a s 11(1) discretionary order |
The three conditions are not interchangeable
ss 77A and 77B can be serious sex offences under the Serious Offenders Act 2018 but are never registrable under SORA and never Pt 2A sexual offences. A s 76 or s 77 entry with intent to rape an adult satisfies the SOA 2018 and Pt 2A routes, but under SORA it drops from Class 2 to the Class 4 pool and registration becomes discretionary rather than automatic. No property offence appears in SORA Schedule 1, so no burglary-family offence is ever Class 1.
What the intended offence has to be¶
Two different lists, depending on the regime. The Serious Offenders Act 2018 and SORA both key off a range of Subdivisions — (8A) to (8FA) of Div 1 Pt I Crimes Act 1958. Part 2A does not: it uses its own enumerated list in Sentencing Act 1991 Sch 1 cl 1(a), and that list is narrower. Both are set out below. Check the list, not your instinct — they do not match.
Route 1 — Subdivisions (8A) to (8FA): the SOA 2018 and SORA list¶
The Subdivision map¶
| Subdiv | Heading | Sections |
|---|---|---|
| (8) | Sexual offences — general provisions (definitions, consent, objectives) | ss 35–37B — outside the range |
| (8A) | Rape, sexual assault and associated sexual offences | ss 38–48B |
| (8B) | Sexual offences against children | ss 49A–49ZC |
| (8C) | Incest | ss 50A–50K |
| (8D) | Child abuse material | ss 51A–51Y |
| (8E) | Sexual offences against persons with a cognitive impairment or mental illness | ss 52A–52K |
| (8F) | Sexual servitude | ss 53A–53G |
| (8FAA) | Commercial sexual services | ss 53H–53N |
| (8FAAB) | Producing, distributing or threatening to distribute intimate images | ss 53O–53ZB |
| (8FA) | Other sexual offences | ss 54A–54C |
| (8G) | Abrogation of obsolete rules of law | s 62 — outside the range |
Read the range as a range. "Subdivisions (8A) to (8FA)" runs from s 38 through s 54C. The definitions Subdivision (8) sits before (8A) and is outside it, which is right — one cannot intend to commit a definition. Note the drafting order: (8FAA) and (8FAAB) sit physically between (8F) and (8FA), so on the ordinary reading of a range they are swept in.
The intimate image offences
Subdivision (8FAAB) (ss 53R producing, 53S distributing, 53T threatening to distribute an intimate image) falls inside the range on its face, yet s 4(1)(a)(i) of the Criminal Procedure Act 2009 lists the sexual-offence Subdivisions individually and omits (8FAAB), treating intimate image offences separately at s 4(1)(ab). Do not assert either way without checking — flag the point instead.
(8A) Rape, sexual assault and associated offences¶
• s 38 rape
• s 39 rape by compelling sexual penetration
• s 40 sexual assault
• s 41 sexual assault by compelling sexual touching
• s 42 assault with intent to commit a sexual offence
• s 43 threat to commit a sexual offence
• s 44 procuring sexual act by threat
• s 45 procuring sexual act by fraud
• s 46 administration of an intoxicating substance for a sexual purpose
• s 47 abduction or detention for a sexual purpose
• s 48 sexual activity directed at another person
(8B) Sexual offences against children¶
• s 49A sexual penetration of a child under 12
• s 49B sexual penetration of a child under 16
• s 49C sexual penetration of a child 16 or 17 under care, supervision or authority
• s 49D sexual assault of a child under 16
• s 49E sexual assault of a child 16 or 17 under CSA
• s 49F sexual activity in the presence of a child under 16
• s 49G sexual activity in the presence of a child 16 or 17 under CSA
• s 49H causing a child under 16 to be present during sexual activity
• s 49I causing a child 16 or 17 under CSA to be present during sexual activity
• s 49J persistent sexual abuse of a child under 16
• s 49K encouraging a child under 16 to engage in or be involved in sexual activity
• s 49L encouraging a child 16 or 17 under CSA to engage in or be involved in sexual activity
• s 49M grooming for sexual conduct with a child under 16
• s 49N loitering near schools etc. by a sexual offender
• s 49O failure by a person in authority to protect a child from a sexual offence
• s 49P abduction or detention of a child under 16 for a sexual purpose
• s 49Q causing or allowing a sexual performance involving a child
• s 49R inviting or offering a sexual performance involving a child
• s 49S facilitating a sexual offence against a child
(8C) Incest · (8E) Cognitive impairment or mental illness¶
• s 50C sexual penetration of a child or lineal descendant
• s 50D sexual penetration of a step-child
• s 50E sexual penetration of a parent, lineal ancestor or step-parent
• s 50F sexual penetration of a sibling or half-sibling
• s 52B sexual penetration of a person with a cognitive impairment or mental illness
• s 52C sexual assault of such a person
• s 52D sexual activity in the presence of such a person
• s 52E causing such a person to be present during sexual activity
(8D) Child abuse material¶
• s 51B involving a child in the production of child abuse material
• s 51C producing child abuse material
• s 51D distributing child abuse material
• s 51E administering a website used to deal with child abuse material
• s 51F encouraging use of a website to deal with child abuse material
• s 51G possession of child abuse material
• s 51H accessing child abuse material
• s 51I assisting a person to avoid apprehension
(8F) Sexual servitude · (8FAA) Commercial sexual services · (8FA) Other¶
• s 53B using force, threat etc. to cause another to provide commercial sexual services
• s 53C causing another to provide commercial sexual services in circumstances involving sexual servitude
• s 53D conducting a business in circumstances involving sexual servitude
• s 53E aggravated sexual servitude
• s 53F deceptive recruiting for commercial sexual services
• s 53G aggravated deceptive recruiting
• s 53H causing or inducing a child to take part in commercial sexual services
• s 53I obtaining a commercial benefit for commercial sexual services provided by a child
• s 53J agreement for provision of commercial sexual services by a child
• s 53K allowing a child to take part in commercial sexual services
• s 53L forcing a person into or to remain in commercial sexual service
• s 53M forcing a person to provide financial support out of commercial sexual services
• s 53N living on the earnings of a person providing unlawful commercial sexual services
• s 54A bestiality
Route 2 — Sentencing Act Sch 1 cl 1(a)(i)–(ix) and (x)–(xvie): the Part 2A list¶
The burglary items are subparagraphs (xvii) and (xviii). They capture ss 76 and 77 where entry was as a trespasser "with intent to commit an offence referred to in subparagraph (i) to (ix) or (x) to (xvie)". That is a closed enumerated range, not a subdivision range — and it stops short of the later subparagraphs. What falls inside it:
Within (i)–(ix)¶
• (i)–(iii) s 38 rape; s 39 rape by compelling sexual penetration (only if the victim is a child); ss 40, 41 sexual assault and sexual assault by compelling sexual touching; ss 42, 43 assault with intent to commit, and threat to commit, a sexual offence
• (iv)–(ivb) ss 50C(1), 50D(1), 50F(1) — incest offences (50F excluding consenting adults)
• (v)–(viii) ss 49A(1), 49B(1), 49D(1), 49F(1), 49H(1), 49J(1) — the child sexual offences against a child under 16
• (viiia)–(viiiba) ss 49C(1), 49E(1), 49G(1), 49I(1) — the equivalents for a child 16 or 17 under care, supervision or authority
• (ix) s 49S(1) facilitating a sexual offence against a child
Within (x)–(xvie)¶
• (x)–(xc) ss 52B(1), 52C(1), 52D(1), 52E(1) — cognitive impairment or mental illness offences
• (xii)–(xiv) s 46(1) administration of an intoxicating substance; s 47(1) abduction or detention for a sexual purpose; s 49P(1) abduction or detention of a child under 16 for a sexual purpose
• (xv)–(xva) ss 44(1), 45(1) procuring a sexual act by threat or by fraud
• (xvb)–(xvc) ss 49K(1), 49L(1) encouraging a child to engage in sexual activity
• (xvia)–(xvidd) ss 53B(1), 53C(1), 53D(1), 53E(1), 53F(1), 53G(1), 53H(1), 53I(1), 53J(1), 53K(1) — sexual servitude and commercial sexual services
• (xvie) s 54A(1) bestiality
What the Part 2A range leaves out — the sharpest point on this sheet
The range stops at (xvie). Everything drafted after it is excluded from the burglary items: the child abuse material offences at (xvig)–(xviic) (ss 51B, 51C, 51D, 51E, 51F, 51G, 51H, 51I) and the sexual performance offences at (xvij)–(xvija) (ss 49Q, 49R). Section 49M (grooming) sits at (ixa), which falls after (ix) and before (x) and so is also outside both limbs. So an aggravated burglary entered with intent to produce child abuse material, or to groom, is a serious sex offence under the Serious Offenders Act 2018 — Subdivisions (8B) and (8D) are inside its range — but is not a Pt 2A sexual offence. Verify the (ixa) point against the current print before relying on it in an answer; it turns on how the range is read.
Schedule 3 Serious Offenders Act 2018 — what it actually means¶
Schedule 3 is not an eligibility schedule. Its full heading is "Additional offences not to be committed as core conditions of supervision order". It does no work at sentence and creates no exposure to a post-sentence order. It bites only on a person already subject to a supervision order or interim supervision order.
How it operates¶
• s 31(4): a core condition of every supervision order is that the offender "must not commit an offence referred to in Schedule 3 in Victoria or elsewhere" — sitting alongside s 31(2) (no serious sex offence) and s 31(3) (no serious violence offence).
• s 169(1): contravening a condition of the order without reasonable excuse is an offence — level 6 imprisonment (5 years maximum).
• s 10AB Sentencing Act 1991: intentional or reckless contravention of a restrictive condition carries a mandatory minimum of 12 months' imprisonment.
• s 172(1)©–(d): the Post Sentence Authority may treat conduct as a serious contravention where it may increase the risk of, or is preparatory to, a Schedule 3 offence.
The property offences in Schedule 3¶
Crimes Act 1958, cl 1: s 28 (l), s 75 (t), s 75A (u), s 76 (v), s 77 (w), s 77A (x), s 77B (y), s 79 (z), s 79A (za), s 197 (zd), s 198 (ze), s 199 (zf). This is where the violent property offences live — and the reason a charge list may wrongly show them as "Sch 2 SVO".
Schedule 3 membership is not eligibility
It does not make an offence a serious violence offence and does not expose an offender to a supervision or detention order. Only Schedule 1 (serious sex offences) and Schedule 2 (serious violence offences) do that. Of all the property offences, only s 197A (arson causing death) is in Schedule 2 — cl 3(h).
Residual routes — do not overlook¶
• SOA 2018 Sch 2 cl 6: "An offence an element of which is an intention to commit an offence of a kind referred to in this Schedule." A s 76 or s 77 charge particularised on an intent to commit s 16 or s 17 (causing serious injury intentionally / recklessly) therefore falls inside Schedule 2 — a violence route wholly independent of the sexual-intent condition.
• SOA 2018 Sch 2 cl 7: conspiracy, incitement and attempt to commit a Schedule 2 offence.
• s 11(1) SORA: a court that finds an adult guilty of an offence that is not a Class 1 or Class 2 offence may nonetheless order compliance with the reporting obligations. Any burglary-family charge can attract registration by this discretionary route, whatever intent is particularised.
The non-sexual consequences of the same four sections¶
| Section | Maximum | Sentencing Act category | Mandatory minimum |
|---|---|---|---|
| s 76 burglary | Level 5 / 10 yrs | — | — |
| s 77 aggravated burglary | Level 2 / 25 yrs | — | — |
| s 77A home invasion | Level 2 / 25 yrs | Category 2 — s 3(1) para (db) | Custodial order required, s 5(2H) |
| s 77B aggravated home invasion | Level 1 / Life | Category 1 — s 3(1) para (ia) | Imprisonment + NPP ≥ 3 yrs unless special reason, s 10AC |
Currency watch¶
• 22 October 2025 — Serious Offenders Act 2018 version 015 in force. Schedules 1–3 as reproduced above.
• 12 August 2026 — every provision in this sheet checked against the current consolidations of the Serious Offenders Act 2018, Sentencing Act 1991, Sex Offenders Registration Act 2004 and Crimes Act 1958.
• Before relying on a pinpoint — Schedules 1 and 3 are amended often. Re-verify the item numbers (44–47, 19–20) and the Schedule 3 paragraph letters; the substance is stable, the numbering is not.