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.


Technical cases

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.


Frequently Asked Questions

Where will the matter be heard?

If the property stolen for a break, enter and steal charge was worth less than $60,000, then the matter may be dealt with in the Local Court.

Many other break and enter offences are strictly indictable and must be heard in the District Court.

What is considered breaking and entering?

“Breaking” means to breach the seal of the premises without permission. It does not necessarily involve smashing the glass of a window or picking a lock. Simply opening a closed window or door to gain access to a premises is sufficient.

“Entering” means that the person “went inside the property”. Courts have held that even inserting some part of one’s body, such as an arm reaching through a window, is sufficient for a finding of guilt.

Is it breaking and entering if the door is unlocked?

Typically, if the door is unlocked and closed, then opening the door and entering the premises will constitute “breaking and entering.” If the window or door is already open, then there can be no instance of “breaking” and the offence cannot be proven. However, the opening of an internal door within the premise may constitute a “breaking of the seal”.

Can you be guilty of break enter and steal if you are caught in the premises?

Yes. Failing to escape with the goods will not prevent a conviction. If you intended to permanently deprive the owner of the goods, then even slightly moving them from their original position can establish the stealing element of the offence.   

How can we help?

We are experienced in successfully defending break and enter charges.

Book a free consultation or call us on 1300 668 484 for 24/7 legal advice.