In NSW, it is a serious offence to break into a house or premises and commit a crime, such as theft or assault, and the penalties can be severe. The penalties will differ depending on what serious indictable offence was committed, the motivation, and whether it was an aggravated offence. Find out more about break and enter offences, penalties, and what to do if you are charged.
Let’s take a closer look.
What Is Break And Enter?A break and enter offence is when a person breaks into a house illegally without permission from the owner and commits or intends to commit a serious crime, such as stealing, assault or murder. Under the Crimes Act 1900, they can be charged if they break something such as a door, gate or window to gain access to the dwelling/house and commit a serious indictable offence. The term “break” refers to the literal breaking of the security of the dwelling/house to enter. Breaking and entering can be actual or constructive. Constructive breaking is when a person gains entry by fraud, threats or using a key they are not entitled to use. New South Wales has several break and enter offences, each with a different maximum penalty.
What Is A Serious Indictable Offence?A serious indictable offence is a crime punishable by a jail term of at least five years or more or a life sentence. A range of offences fall under this category, and the seriousness of the offence will vary depending on the circumstances and facts surrounding the crime. A break and enter becomes an indictable offence due to the events that are committed or intended once inside the premise. The most common being break, enter and steal. Some other examples of an indictable offence include the following;
- Armed robbery
- Aggravated assault
- Sexual assault
What Does An Aggravated Offence Mean?An aggravated offence refers to circumstances surrounding someone committing a crime to make it more serious. If a person commits an offence and includes circumstances of aggravation, it can substantially increase their penalty, and they are liable to imprisonment for 20 years. Aggravation can also be influenced by the offender’s manner, level of aggression and also the victim’s circumstances. Some of the circumstances may include any of the following;
- Armed with an offensive weapon
- More than one person is committing the offence
- The use of corporal violence on another person
- Intentionally inflicting bodily harm on another person
- Depriving another person of their liberties
- Prior knowledge of a person inhabiting the premise where the offence is to occur
- Violence, threats or blackmail
What Actions Constitute illegally Entering A Premises?
- Being on a premise without permission from the owner
- Refusing to leave the property after being requested to go
- Breaking objects or a barrier to gain entry
- Remaining on premises without a legal reason
Examples Of A Break And Enter Offence
- Climbing onto the balcony of a multi-storey apartment and breaking windows to steal a TV
- Kicking in the front door of a house to break in whilst armed with a baseball bat
- Stealing documents from an office and escaping through a window
- Driving a car through a warehouse door and destroying laboratory equipment inside
What Must The Prosecution Prove?An accused person can only be prosecuted for a break and enter charge if the prosecution can prove beyond a reasonable doubt all of the following matters:
- The accused person broke something, such as a window or door, to gain access to the dwelling/house.
- Due to breaking something, the accused person could gain entry into the house.
- After gaining entry by breaking something, the accused person entered the dwelling/house.
- Once inside the house, the accused person committed or intended to commit a serious indictable offence (The prosecution must provide evidence that the accused person intended to commit a crime.)
- They possessed a weapon or other instrument which could be used as a weapon.
What Are The Options If Charged With Break And Enter?Break and enter is a serious crime, and any person charged with this offence must seek immediate advice from an experienced criminal lawyer. A solicitor can help defend a charge or negotiate a less severe charge where appropriate.
Plead Not GuiltyA person accused of a break and enter offence must have an opportunity to plead their case at a defended hearing. If they did not commit the crime, they should maintain their innocence and provide the facts in detail, such as noting the lack of sufficient evidence. If an accused person did no actual breaking of an object to gain access to the house, for example, they may have opened a window or door which was already partly opened, they can not be charged with breaking and entering. Or if what they broke did not allow access to the house. Police will need to be able to prove;
- The accused person did break and enter the property
- They were in the building
- They intended to commit a crime
DuressWhen a person commits an act under duress, they do so because they have been threatened and are compelled to act in a certain way.
NecessityThe defence of necessity may be appropriate when the actions are necessary to avoid more significant harm or threat.
Self DefenceSelf defence is when a person is compelled to use considerable force to defend themselves or their property. It may also include force to prevent someone from trespassing or to remove a trespasser who has gained access to their property.
Plead Guilty (full acceptance)The best result when a person pleads guilty is to do so at the earliest opportunity, as it will ensure that the person convicted will receive a sentence discount of 25%. A guilty plea also shows the court that there is remorse for the crime. In some cases, criminal lawyers can manage to obtain a non-conviction, more lenient sentence if they manage to secure a disputed facts hearing.
Plea NegotiationsDepending on the circumstances surrounding the offence, there may be occasions where a criminal lawyer may be able to negotiate with police or prosecutors to downgrade the charge and even, in some circumstances, withdraw the criminal charges.
What Factors May Influence Sentencing?A serious indictable offence comes with a heavy prison sentence, which may be adjusted when the court understands the motivation for committing the crime. In many cases, the offences committed may not be for personal gain or vengeance but retribution or other less severe intentions. Conversely, the maximum penalty will increase if there are circumstances of aggravation surrounding the crime. Another factor that will significantly influence the penalty for the offence is where the matter is heard, which is affected by the serious indictable offence.
Provocation By The VictimWhen it comes to sentencing, the court will consider all the facts and circumstances of the event. For example, the court may assess the criminality of an offence as falling toward the lower end of seriousness if they felt the motivation for the crime was not personal gain, such as in the case of provocation by the victim. Several cases of aggravated break and enter offences were committed following provocation by the victim, who displayed lewd conduct towards a family member and the accused committed the offence with a desire for retribution.
Motivating CircumstancesIn some cases, an essential part of determining an appropriate sentence is understanding the individual’s motivation for committing the offence. Another example where the crime fell towards the lower end of seriousness was a person who discovered that his employer was underpaying him, so he stole money from the safe and was subsequently charged with breaking and entering his workplace. The accused became the victim, and their employer was accused of wage theft. The individual was acquitted, as his motivation was retribution for his employer’s illegal work practices.
Prior ConvictionsBefore sentencing, the court will consider the seriousness of the offence, and certain factors will negatively impact their decision, mainly if more than one factor is present, such as; Whether the individual had a prior criminal record for similar offences or was on parole. Prior convictions may be relevant as leniency may not be extended if their motivation for committing the offence could be questioned. Each case will be determined based on evidence, relevant circumstances, motivation for committing the crime and regret or remorse by the offender.
Local Court Or District CourtThe nature and severity of the serious offence determines where the matter is heard. Offences are classified depending on their severity, such as break and enter which is a table 1 offence, and it is heard at the local court. A break enter and steal offence is also more likely to be heard in the local court, where the maximum penalty is two years. But if the break enter charge has a serious indictable offence attached, it may be heard in a higher court, such as the district court, and the penalty will be 14 years imprisonment or more. The Department of Public Prosecutions may also elect to have the case finalised in the District Court. It is crucial that individuals who are charged with a break and enter charge consult experienced criminal lawyers immediately to obtain professional advice, as they have the skills and expertise to help ensure the best result possible.
Other Contributing FactorsThere is a considerable diversity of circumstances surrounding the break and enter offences, and the court will consider contributing factors that may influence the penalty. Break, enter and steal, for example, the court will consider the following before deciding the penalty for the offence;
- Was the offender on bail or parole
- Were there circumstances of aggravation
- Was the offence the result of professional planning and organisation
- Were there sick, elderly or disabled persons at the premises
- Was there significant damage to the property or vandalism
- Were there repeat excursions to the exact location
- Assess the value of the stolen property to the victim, sentimental as well as financial
- Was there prior knowledge of the property being occupied
- Consider the victim’s trauma
Break And Enter Offences And PenaltiesBreak and enter offences in NSW are governed by the legislation in the Crimes Act 1900. There are several break and enter offences, and they are listed as follows:
Break into a dwelling with the intent to commit a serious indictable offenceIf an offender is convicted of this crime, they face a maximum penalty of up to 10 years imprisonment.
Break out of a dwelling after committing a serious indictable offence, or enter with intent to commitIf an offender is convicted of this crime, they face a maximum penalty of up to 14 years imprisonment.
Break into a house and commit a serious indictable offenceIf an offender is convicted of this crime, they face a maximum penalty of up to 14 years imprisonment.
Enter a dwelling/house with the intent to commit serious indictable offenceIf an offender is convicted of this crime, they face a maximum penalty of up to 10 years imprisonment.
Break, enter and assault with the intent to commit murderIf an offender is convicted of this crime, they face a maximum penalty of up to 25 years imprisonment.
Armed with the intent to commit serious indictable offenceIf an offender is convicted of this crime, they face a maximum penalty of up to 7 years imprisonment.
An armed convicted offender with intent to commit serious indictable offenceIf an offender is convicted of this crime, they face a maximum penalty of up to 10 years imprisonment. If the case is heard at a local court, it is more likely that the accused will receive a lesser penalty than what they would receive for a more serious offence at the district court. Maximum penalties will be increased if there are circumstances of aggravation or special aggravation. Criminal law is complex. Anyone charged with break and enter must seek immediate help from criminal lawyers to provide professional advice.
Possible Alternatives To A Prison SentenceSection 115A of the Crimes Act states several options for alternative sentencing. Subsequently, the court may not always impose a prison sentence, they will consider all other possible alternatives, and in some cases, they may impose any of the following for a break and enter charge;
- Home Detention
- Community Correction Order
- Conditional Release Order