To “break and enter” means to physically break into a home or building or enter through a door, window, or gate that’s not open, but unlocked. However, people believe this criminal offence always involves physical force. But what is the meaning of the offence under the law?
The Crimes Act 1900 deals with laws relating to the offence of break and enter. This article discusses its definition and penalties, among other things.
The Break and Enter Offence Under Australian Criminal Law
Break and enter is a serious offence as parties who break and enter also generally commit or intend to commit serious offences once inside the dwelling. The most common type of break and enter offence in New South Wales is the offence of “break and enter and committing a serious indictable offence” and “break and enter with intent to commit a serious indictable offence” under Sections 112 and 113 of the Crimes Act 1900.
A serious indictable offence is any crime that carries up to 5 years’ or more imprisonment or life imprisonment. This includes offences such as stealing (also known as larceny), actual bodily harm, sexual assault, recklessly damaging or destroying property, among others.
Under Section 112 of the Crimes Act 1900, a person is guilty of the offence and can be liable up to either 2 years of imprisonment (if the local court hears the matter) or 14 years of imprisonment (if the district court hears the matter) if they:
- Break and enter any dwelling-house or other building and commit any serious indictable offence within, or
- Being in any dwelling-house or other building, commit any serious indictable offence therein and break out of the dwelling-house or other building.
What Constitutes “Breaking”?
Most people understand “breaking” as involving force like smashing a window; however, the opening of a closed door or window without causing damage can also amount to “breaking”.
Case law provides that “breaking” may be actual or constructive. Actual breaking is where a party infringes the security of the house though there need not be any breaking of any object.
Constructive breaking occurs when a party obtains entry by fraud, or threats, or by the use of a key which the person does not have a right to use. The test is whether a person entering the house believed he had no authority to enter.
Hence, “breaking” does not only constitute breaking by force or damage. Opening a closed but unlocked door or window without having to break it satisfies the element of the offence. Forceful entry need not be present all the time. Entering the home or building after breaking then constitutes the offence.
However, take note that “breaking” does not include entering through a window or door that’s already open.
Moreover, a serious indictable offence alleged was not committed, but the accused person had an intent to commit a serious indictable offence, the person holds liability under Section 113 of the Crimes Act 1900 and can be liable up to 10 years’ imprisonment.
This means you don’t have to actually commit a crime after entering the building or structure; you may receive a charge even if you had entered with the intention to commit a crime.
Aggravated and Specially Aggravated Circumstances
Under Section 112(2), the maximum penalty increases to 20 years’ imprisonment where the party commits the offence in circumstances of aggravation, which is where you:
- Had an offensive weapon or instrument,
- Were with at least one other person,
- Used corporal violence,
- Intentionally or recklessly inflicted actual bodily harm,
- Deprived a person of their liberty, or
- Knew there was at least one person in the dwelling.
An “offensive weapon or instrument” means:
- A dangerous weapon, or
- Anything made or adapted for offensive purposes, whether or not it is ordinarily used as a weapon or capable of causing harm.
Under Section 112(3), the maximum penalty increases to 25 years’ imprisonment where a specially aggravated offence occurs because the offender:
- Intentionally wounded or inflicted grievous bodily harm,
- Inflicted grievous bodily harm and were reckless as to causing actual bodily harm, or
- Had a dangerous weapon.
A “dangerous weapon” is defined as:
- A firearm or imitation firearm,
- A prohibited weapon, or
- A spear gun.
For Section 113 (2), the maximum penalty increases to 14 years’ imprisonment where the offence is committed in circumstances of aggravation. Those circumstances as well as the definition of “offensive weapon or instrument” are the same as those of Section 112(2).
For specially aggravated offences under Section 113(3), the maximum penalty increases to 20 years’ imprisonment in the district court where the offender:
- Intentionally wounded or inflicted grievous bodily harm,
- Inflicted grievous bodily harm and was reckless as to causing actual bodily harm, or
- Was armed with a dangerous weapon.
A “dangerous weapon” has the same meaning as that which applies in Section 112(3).
Types of Break and Enter Offences
Apart from the previously mentioned types, Subdivision 4 of the Crimes Act 1900 enumerates various break and enter offences, which include:
- break out of a dwelling-house after committing, or enter with intent to commit, an indictable offence (Section 109, maximum penalty of 14 years’ imprisonment),
- break, enter and assault with intent to murder (Section 110, maximum penalty of 25 years’ imprisonment),
- enter a dwelling house with intent to commit serious indictable offences (Section 111, maximum penalty 10 of years’ imprisonment),
- being armed with intent to commit an indictable offence (Section 114, maximum penalty of 7 years’ imprisonment), and
- being a convicted offender armed with intent to commit an indictable offence (Section 115, maximum penalty of 10 years’ imprisonment).
Individuals armed and have the intent to commit an indictable offence may be liable up to 7 years’ imprisonment if the following elements occur:
- They are armed with any weapon or instrument with intent to commit an indictable offence,
- Have in their possession without lawful excuse, any implement of housebreaking or safe breaking, or any implement capable of being used to enter or drive or enter and drive a conveyance,
- Have their face blackened or otherwise disguised or has in their possession the means of disguising their face with intent to commit an indictable offence, and
- Enter or remain in or upon any part of a building or any land occupied or used in connection therewith with intent to commit an indictable offence in or upon the building.
Seeking Legal Advice From Criminal Lawyers
You may be facing a break and enter charge but actually have a lawful reason for entering the property.
JB Solicitors can help. We have a leading team of experienced lawyers who can obtain the best possible outcome for your situation. We can help build your case, prepare legal defences, and provide lawful explanations.
Do you have any more queries regarding the offence? Contact us today.