Breaking and entering
To break and enter means to “break the seal” of the property, and enter into the property.
The term “break” is often misunderstood to mean break by force or damage. Because at law the term means to break the seal of the property, opening a closed door or window is enough to satisfy this element of the offence. It does not require forceful entry. There are a number of different breaking and entering offences, and the specific charge will depend on the circumstances.
One of the most common offences is “break, enter and commit serious indictable offence”. This is a criminal offence under section 112(1) of the Crimes Act 1900 (NSW). The serious indictable offence typically committed is stealing.
Break, enter, and steal occurs when the accused:
- Broke the seal of the property and gained access to a house, apartment, or other building,
- Entered the premises, and
- Took away property without consent, intending to deprive the owner of it permanently.
However, to be charged under section 112(1), a person can commit any serious indictable offence once they have entered the property. “Serious indictable offence” means any offence that has a maximum penalty of imprisonment of five years or more. This includes a sexual assault, assault occasioning actual bodily harm, or intimidation
Aggravated break and enter
There are aggravated forms of “break, enter and commit serious indictable offence” under section 112(2) and (3) of the Crimes Act. These include situations where:
- Two or more people were involved.
- Someone was at home at the time of the offence.
- The offender inflicted actual bodily harm.
Circumstances of special aggravation include where the offender inflicts grievous bodily harm or is armed with a dangerous weapon.
Penalties for breaking and entering
The maximum penalty for a charge of break and enter under section 112(1) of the Crimes Act is 14 years imprisonment. In circumstances of aggravation and special aggravation, the maximum penalties are 20 to 25 years imprisonment respectively.
The penalties for break and enter can be severe. It is therefore essential to have an experienced defence lawyer who can assist you in presenting the strongest case possible. In the District Court, 80 per cent of break, enter and steal offenders receive a prison sentence.
Break, enter and steal charges may remain in the Local Court where the jurisdictional limit of the penalty the court may impose is two years imprisonment. Penalties can include a fine, Conditional Release Order, or Community Correction Order, but in more than half of all cases the court imposes a prison sentence.
Often, a charge of break and enter is based on slim evidence such as a single fingerprint or DNA match. In such cases, the exact position of the fingerprint or DNA may be insufficient for the prosecution to succeed. Or there may be further technical offences that require a sophisticated understanding of the law specific to this offence.
If you have been charged with breaking and entering, there may be:
- A lawful reason for why you entered the property,
- A lawful explanation as to why an object within the property has matched with your fingerprints or DNA, or
- Other technical legal defences available to you.
As the penalty imposed by the courts for this offence is often a term of imprisonment, it is highly recommended that you seek expert legal advice to ensure that you obtain the best possible outcome.