Break and Enter Offences and Penalties in New South Wales (NSW)

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It is an offence to break or enter premises or dwellings illegally in New South Wales (NSW). Under the Crimes Act 1900 (NSW), a person can illegally enter a premise or residence by;

• Being on a premise or dwelling without permission from the legal owner
• Remaining in such property after the owner requests them to leave
• Breaking any barriers or objects to be in that premise
• Staying on a premise with no legal reason or excuse to be there

This offence becomes worse if the person;

• Enters such premise/dwelling to commit an indictable crime,
• Is armed on such premises/property.
• Refuses a Law enforcement order.
• Causes any of the occupants to fear for their lives or properties.
• Commits any of these offences in a company.

If an individual is convicted for a Break and Enter offence, the offence will show up as a disclosable court outcome (DCO) on a Nationally Coordinated Criminal History Check.

Penalties for Break and Enter offences in New South Wales

The Crimes Act 1900 (NSW) is the formal legislation that handles such misdemeanours and related actions. Division 4 of the Act and the sections following it prohibits, defines and issues punishments for cases that constitute a Break and Enter offence.

Such matters are usually serious offences heard by a jury, and they can also determine the appropriate sentencing for the offender.

The actions for Break and Enter offences in New South Wales include;

Breaking in or Out of a dwelling with intent to commit an indictable offence

Section 109 of the Crimes Act 1900 (NSW) describes a crime where a person;

• Breaks into a dwelling (or out), with
• The intention of committing a serious offence. Or where the person being illegally present in a dwelling commits an indictable crime.

It is a crime that incurs punishments up to 14 years imprisonment for any convicted offender under the Code.

Aggravated offence

For a case of aggravation (defined in any other legislation or by a court), the person will be liable to punishments reaching as high as 20 years imprisonment.

Other aggravated cases can be labelled "special" by the court and result in punishments reaching 25 years.

Many circumstances can qualify as cases for aggravation, including;

• The use, pretence or firing of a weapon or other firearms,
• Assaulting a person in the process of entry or escape,
• Committing such offence in the company of other offenders,
• Other aggravated circumstances listed by legislation.

Break and Enter offences with intent to commit murder

It is a serious offence under section 110 of the Crimes Act 1900 (NSW) for a person to break or enter into a dwelling or an apartment and;

• Attempts to or assaults a person with the intent to murder them;
• Inflicts any other severe and grievous harm on such persons.

A person guilty of this offence or similar is liable to punishments reaching as high as 25 years imprisonment.

Break and Entry offences in a dwelling or House

Section 111 of the Crimes Act 1900 (NSW) punishes an offence where a person breaks into a dwelling with an intention to commit a serious indictable offence. It is immaterial for this section and all other similar charges what the reason for committing the indictable offence is

This offence carries a basic sentencing of 10 years imprisonment for all accused persons.

Aggravated cases

If the court rules a case or circumstance of aggravation, the sentencing increases. Subsection 2 of s111 stipulates an increased penalty of 14 years imprisonment for any circumstance of aggravation on the matter.

Special aggravated cases

Some cases are considered to be especially aggravating under this section. If the court considers a circumstance to be a particular case of aggravation, it will impose penalties of 20 years imprisonment for such an offender.

Breaking into a dwelling (House) and committing a serious offence

It is a criminal act for a person to knowingly and maliciously break into a building or other dwelling. Or where the person being in a dwelling commits an indictable offence and breaks out of such.

Section 112 of the Crimes Act 1900 (NSW) prescribes punishments of 14 years imprisonment for all those the court finds guilty.

Aggravated circumstance

If the court considers the matter to have aggravating actions or circumstances, the convicted person will be liable to punishments of 20 years imprisonment.

There are also cases for special aggravation, especially when the court decides how "hard" the aggravating evidence is. Subsection 3 of section 112 stipulates penalties reaching 25 years imprisonment if the court rules a person to be guilty of special aggravating circumstances.

Breaking into a house with intent to commit a serious indictable offence

Section 113 of the Crimes Act 1900 (NSW) seriously punishes the act of even attempting to commit an indictable offence after illegally breaking into a building. The crime attracts a maximum penalty of 10 years imprisonment for a basic offence.

It includes where a person breaks into a legal dwelling or apartment with the intent to commit a serious offence. However, the prosecutor must prove in court that the person had the intention of committing this offence.

Aggravated circumstances

If it is a case of aggravation, the punishment increases to 14 years under subsection 2 of the Crimes Act. It is 20 years imprisonment if the courts decide instances of such aggravation were in special circumstances.

Being armed with intention/attempting to commit an indictable offence

Section 114 of the Crimes Act 1900 (NSW) lists some offensive actions with severe punishments if a person;

• Arms themselves with a weapon or any equipment or pretends as such to commit an indictable offence
• Keeps in their possession any safecracking or housebreaking equipment or materials used to pass through a conveyance
• Has some form of disguise, masks or blackening on their face to commit an indictable offence
• Breaks into or remains in a property or part of it used to commit an indictable offence
• Any other offence the court considers under this section.

Such behaviours leading to offences are punishable with seven years imprisonment under section 114.

Being a convicted offender and armed with intent to commit an indictable offence

A convicted offender who further commits an offence under section 114 is liable to ten years imprisonment. It is an "aggravating circumstance" for such a person to repeat the offence.

• Alternative verdicts

Section 115A of the Crimes Act 1900 (NSW) provides various forms of alternative sentencing, especially if the jury is not convinced that the accused person deserves punishment for the original offence. The s115A allows the court to issue suitable sentencing for the latter violations the court finds them guilty of.

It also appears in the case of aggravated offences and special aggravating offences for the relevant sections.

Aggravating circumstances for a Break and Entry offence

The Crimes Act 1900 (NSW) prescribes varying sentencing for the same crime depending on the circumstances or the degree. There are many reasons why an offence will be considered as having aggravating circumstances, including the following;

Manner, level of aggression, the victim's circumstances and so on.

Common aggravating circumstance for Break and Entry offences include;

• ✔ The accused person was armed with an dangerous weapon/object

The court considers having an arm that is intimidating and fearful of being an aggravating circumstance to a break and Entry offence (most).

• ✔ Committed the offence in company

If the court considers the offence to be committed in a group or any other large number that would possibly intimidate the victim, it is a reason for aggravation.

• ✔ Intentionally or Recklessly inflicted bodily damages or injury

The court considers it aggravating that the offender intentionally harmed the victim because the processor was careless about their conduct, leading to physical harm.

• ✔ Knew that there was a person(s) in the place where the offence happened

It is a severe circumstance if the offender knows a person (or likely) and still commits the crime.

Other circumstance include;

• Use any form of violence, threats, or blackmail against the person,
• Destroyed any property or important document,
• Deprived such person of their liberty
• The victim was above 60 years of age at the time

Cases for special aggravation include;

• The accused person caused permanent or severe bodily injury to the victim,
• The accused was reckless as to the causing of such injury,
• The accused was armed with a dangerous weapon and attempted to discharge such
• Any form of sexual assault offence on any of the victims.
• Other cases the court considers to be of special aggravation.

What are some cases that qualify as a break and enter offence?

Various actions or scenarios can constitute a Break and Enter offence. While the acts are not limited to these scenarios, they are commonly prosecuted as a "Break and Enter" charge.

Some of them include;

• Climbing to the balcony of a multi-storeyed building and breaking the windows to steal a TV.
• Breaking into an apartment by kicking the House's front door while armed with a baseball bat.
• Ramming a heavy metal or equipment through a warehouse door and destroying utilities.
• Stealing office documents while in an office and escaping through the windows or other non-conventional exit points.
• Breaking into a guarded religious audience (building) while holding a knife or other weapon.

What the prosecutor must prove for a Break and Enter offence

The onus is on the prosecution team to prove that the accused person committed such actions that constitute a "Break and Enter" offence under the law. The court will also require evidence that the accused person "intended/attempted" to commit an indictable crime.

The Police prosecuting the matter must prove that;

• The accused person broke a barrier; window, door or any other relevant proofing
• They gained access to the House, dwelling or place only after breaking such barriers
• They committed a serious indictable offence after they broke into the dwelling
• They entered the premise, dwelling or place; their body was at any point in the premise
• They had a weapon or other fearful instrument when they broke in

If the prosecution cannot prove that the accused person did any of this, the court cannot convict the accused of a “Break and Entry” offence and may downgrade or strike-out the offence. Also, it is advisable to seek the services of a lawyer related to such cases.

There are many arguments your legal counsel can make in your defence.

Possible defences for Break and Entry offences

If you have been charged with a break and entry offence, your first action should be to attend the court hearing.

• ✔ Maintain your innocence

It is only common sense to maintain your side of the story if you are innocent of the matter.

• ✔ Argue that you did not break anything

If you were on the premise but did not break into the property or destroy any barrier, you can argue that it was not a break-in offence

• ✔ Argue that you did not commit an indictable offence

If you did not commit an indictable crime or argue that it was only a break in offence, the court will review the matter and sentence you accordingly.

• ✔ It was an act under duress.

The accused person can argue that they were pursued to that property or entered the premises to escape some form of danger.

What is an Indictable offence?

The law generally classifies an offence as being a violation/simple offence (summary offences) or being serious (indictable offence). Offences treated as indictable offences usually have severe consequences and are heard in higher courts.

Some example of indictable offence includes;

• Murder,
• Rape and serious sexual offences,
• Armed Robbery,
• Aggravated assault,
• Treason offences,
• Manslaughter,
• Domestic Violence leading to serious injuries,
• Fraud leading to severe consequences.

What is a Building or premise?

For this section, a building is an inhabited or private structure. However, it does not matter that a person was there at the time of the Break and Enter offence.

A premise includes any publicly controlled property, municipality, offices or other properties with restricted access.

Which court hears a Break and Enter offence?

The state of NSW considers such offence a table one offence and will proceed to a local court unless any party elects to hear the matter in a District or higher court. All matters heard in a Magistrates or Local Court don’t have sentencing greater than two years imprisonment.

However, if the court feels a higher court must prosecute the matter, it will refer it to a higher court (District court).

Will a Break and Enter Offence show up on a Nationally Coordinated Criminal History Check?

If an individual is found guilty of a Break and Enter offence, the offence will show up as a disclosable court outcome (DCO) on the results of their Nationally Coordinated Criminal History Check.

Individuals can obtain a police check online via the Australian National Character Check - ANCC® website.

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