Break and Enter

Break and Enter (or “breaking and entering”) is unlawfully entering a property without consent and with intent to commit an offence.

Legal experts in Criminal Offences NSW - including Break and Enter

Break and Enter offences are treated very seriously within the NSW criminal justice system, with charges and penalties outlined in part 4 of the Crimes Act 1900. The team at Hamilton Janke Lawyers are highly aware of the serious nature of these charges and are experienced in guiding those accused through their criminal proceedings to ensure they receive the most favourable result.

If you have been charged with a break and enter offence it is vital that you seek legal advice.

What is break and enter?

An individual can be found guilty of breaking and entering if he enters or breaks into the place of another person without their consent, with the intent to commit an offence.

A break-and-enter constitutes two actions;

The act of breaking a seal
The act of entering a location

Charges for Break and Enter offences

There are an array of different charges for break-and-enter offences, as outlined in part 4 of the Crime Act 1900 (NSW).

These include,

break out of a dwelling-house after committing, or enter with intent to commit, an indictable offence (s 109, maximum penalty 14 years)
break, enter and assault with intent to murder (s 110, maximum penalty 25 years)
enter a dwelling house with intent to commit a serious indictable offence (s 111, maximum penalty 10 years)
break, enter and commit a serious indictable offence (s 112, maximum penalty 14 years)
break and enter with intent to commit a serious indictable offence (s 113, maximum penalty 10 years)
being armed with intent to commit an indictable offence (s 114, maximum penalty 7 years), and
being a convicted offender armed with intent to commit an indictable offence (s 115, maximum penalty 10 years).

Break and Enter and Commit Serious Indictable Offence

One of the most common break and enter offences is “break and enter and commit a serious indictable offence” outlined under section 112 (1) of the Crimes Act 1900 (NSW). This encompasses break, enter and steal.

Serious indictable offence refers to any offence with a maximum penalty of 5 years imprisonment or more. The charge under section 112 (1) of break and enter and commit a serious indictable offence covers various offences and crimes, including breaking into a dwelling to commit assault occasioning actual bodily harm, intimidation or sexual assault.

In order for an individual to be found guilty of “break, enter and commit a serious indictable offence” it must be proven that the accused:

Broke the seal of the property and gained access to a house, apartment or other building,
Entered the premises; and
Committed a serious indictable offence

Those found guilty of this offence are liable to a maximum term of 14 years imprisonment.

Aggravated Break and Enter and Commit Serious Indictable Offence

Under Section 112 (2) of the Crimes Act 1900 (NSW), if an individual is found guilty of a break and enter and commits a serious indictable offence under aggravating circumstances is liable to a maximum penalty of 20 years imprisonment.

In accordance with subsection (1), these ‘circumstances of aggravation’ include:

Being in the company of others
Use of corporal violence
Use of a weapon
Deprive an individual of their liberties
The offender inflicted actual bodily harm
You knew someone was on the property where you committed the offence

Specially Aggravated Break and Enter and Commit Serious Indictable Offence

Circumstances of ‘special aggravation’ include:

If the accused wounds or maliciously inflicts grievous bodily harm on another person and/or
Was in possession of a dangerous weapon

If an individual is found guilty of breaking and entering and committing a serious indictable offence in circumstances of special aggravation, they are liable to a maximum penalty of 25 years imprisonment in accordance with Section 112 (3) of the Crimes Act 1900 (NSW).

Penalty for Break and Enter NSW

Due to the nature of break-and-enter offences, the penalty largely depends on the circumstances of the offence. Some break and enter charges carry maximum punishments of up to 25 years imprisonment, including break, enter and assault with intent to murder (s.110) and Break, enter and commit a serious indictable offence in circumstances of special aggravation (s. 112(3)).

In sentencing an individual found guilty of a break-and-enter charge, the judge will consider the circumstances of the offence to determine the most appropriate penalty. They can exercise judicial discretion by sentencing an individual to any of the following punishments;

Imprisonment
Section 10 – dismissal
Fine
Conditional Release Order
Community Correction Order
Intensive Correction Order (ICO)
Home Detention
Section 9 – Good behaviour bond

Is break and enter an indictable offence?

The Criminal Procedure Act 1986 (NSW) defines an indictable offence as “an offence that may be prosecuted on indictment”. This means indictable offences are serious matters in which the maximum penalty is significant.

Many break-and-enter offences carry severe penalties that can result in long custodial sentences. As such, many break-and-enter offences are indictable or serious indictable offences. Therefore, these matters are finalised in the district court before a judge and jury of 12 citizens.

Do you legally have to report a break-and-enter if you witness it?

In many circumstances, individuals are not legally required to report a crime when they witness it. However, under section 315 of the Crimes Act 1900, it is an offence to conceal information regarding a serious indictable offence (any offence that carries a prison term of at least five years) if you don’t have a reasonable excuse for failure to report.

As break and enter is a serious offence, failure to report this offence if you witness it can have negative legal consequences. If you witness such an offence, it is recommended that you seek advice from an expert criminal lawyer or report any knowledge of it anonymously through crime stoppers.

Defences for Break and Enter in NSW

If you have been charged with a break-and-enter offence, but believe you have legal justification for your actions, there are various legal defences that can result in either an acquittal or a diminished sentence. The team at Hamilton Janke lawyers can assist in providing expert advice on suitable defences to your circumstances. With reference to break and enter charges, these include but are not limited to:

Duress – Where you were coerced or threatened into committing the break and enter
Necessity – You committed the break and enter to prevent serious injury or death to another person
Honest Mistake – You had a genuine belief the owner of the property gave you permission to break and enter

Pleading Guilty

If you disagree with the charges made against you, you have the option to plead not guilty. Upon entering a not-guilty plea, you will not be convicted of the offence unless the prosecution is able to prove the elements of the offence beyond a reasonable doubt.

If you choose to enter a not-guilty plea, the matter will likely proceed to a trial in which your case would likely be heard before a judge and a jury of 12 citizens. This allows you to provide a defence to the charges made against you if you choose to do so. In these circumstances, an experienced criminal lawyer is necessary to guide you through the criminal proceedings and ensure you receive the best outcome.

Our team at Hamilton Janke Lawyers can offer expert advice and 24/7 support during this time. We can advise on the various possible defences to break and enter charges that may be applicable to individual circumstances.

Pleading Not Guilty

If you choose to plead guilty to a charge of break and enter, this tells the Court that you agree with allegations made by the police, and you are responsible for the offence with which you are charged.

After entering a guilty plea, the matter will process to sentencing, in which the judge will determine the appropriate sentencing. In accordance with the NSW judgement guidelines, entering a guilty plea may reduce the maximum sentence issued.

Pleading guilty early in proceedings provides the greatest opportunity for a mitigated sentence, with the current maximum discount available for an early plea being 25%. There may also be other discounts available on sentences for providing assistance to authorities, amongst other things.

Burden of Proof

As a criminal matter, the burden of proof for breaking and entering charges lies with the prosecution. If the prosecution is unable to prove all the elements of the offence with which you are charged beyond a reasonable doubt, you will not be found guilty, and charges against you will be dropped.

Need the best Criminal Offences Lawyer in NSW?

If you are being charged with a criminal offence such as break and enter, it is vital that you seek legal advice and legal representation. An experienced criminal defence lawyer will be able to advise you on how to proceed and assist you through every step of the process. Contact our expert Criminal Defence Lawyers now.