BREAK AND ENTER OFFENCE NSW

WHAT IS THE OFFENCE OF BREAK AND ENTER IN NSW?

In New South Wales, there are numerous types of ‘break and enter’ offences under the Crimes Act 1900 (NSW). Notably, NSW retains the highest full-time imprisonment rate for break and enter, and burglary offences across Australia.

At law a ‘break’ merely means that the person has broken the seal of the property. This could be open a door that is closed or sliding a window open. Further, a ‘constructive’ break can satisfy a charge of “breaking and entering.” An example includes knocking on someones door and pretending be the police. To the contrary, it will not be considered a break and enter where the person has lawful authority to enter the premises. This may be due to consent of the owner, or due to their own rights in the premises. Further, if a door is ajar and you enter a property it also would not satisfy a “break”.

SECTION 112(1) OF THE ACT – BREAK AND ENTER AND COMMIT SERIOUS INDICTABLE OFFENCE

It is an offence to break and enter any dwelling-house or other building and commit any serious indictable offence therein.

A ‘serious indictable offence’ is defined as an offence carrying a term of imprisonment of five years or more, with the most common offence typically associated being stealing.

In the Local Court, the maximum penalty applicable is limited to 2 years imprisonment and/or a $11,000 fine.

However, in any other case, the matter will be considered ‘strictly indictable’ and will have to be dealt with in the District Court. A maximum penalty of 14 years imprisonment is then applicable.

AGGRAVATING FACTORS FOR A BREAK AND ENTER OFFENCE:

The Act also provides circumstances which will make the offence ‘aggravated’, including where the alleged offender:

was armed with an offensive weapon, or instrument,
was in the company of another person or persons,
used corporal violence on any person (i.e., violence involving someone’s body),
intentionally or recklessly inflicted actual bodily harm on any person,
deprived any person of their liberty, or
knew that there was a person, or persons, in the place where the offence is alleged to be committed.

In such cases, the offence carries a maximum penalty of 20 years imprisonment.

Further, there are circumstances which will make the offence ‘specially aggravated’, including where the alleged offender:

intentionally wounds or intentionally inflicts grievous bodily harm on any person;
inflicts grievous bodily harm on any person and is reckless as to causing actual bodily harm to that or any other person; or
is armed with a dangerous weapon.

In such cases, the offence is strictly indictable (meaning it has to proceed to the District Court) and carries a maximum penalty of 25 years imprisonment.

WHAT DOES THE COURT TAKE INTO CONSIDERATION ON SENTENCE?

A non-exhaustive list of factors the court will take into account include:

The sophistication, organisation and level of involvement in the offending;
Whether the offender has a prior record particularly for like offences;
The vulnerability of the victim;
The course of conduct involved;
The remorse and contrition of the offender; or
Further significant features include the mental health, context and role.

HOW WE CAN HELP?

Our Criminal Lawyers have a proven track record of obtaining the best results for these matters. Whether it’s defending the matter with a plea of not guilty or pleading guilty to a charge of break and enter, our team of criminal lawyers will advise the best strategy to minimise the damage in your case and help you move on with your life.