Break and Enter Offence
Understanding the Crime in Legal Terms
Break and enter is an offence of “breaking and entering” which carries severe penalties if the accused has been found guilty of such charge.
Section 112 of the Crimes Act 1900 (NSW) addresses breaking and entering, which states:
- A person who:
- Breaks and enters any dwelling-house or other building and commits any serious indictable therein, or
- Being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building is guilty of an offence.
- A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in aggravation.
- A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) is circumstances of special aggravation.
the Crime in Legal Terms
“Serious indictable offence”
Section 112 states that it is an offence to break and enter and commit a “serious indictable offence”.
A serious indictable offence extends beyond simply breaking and entering to steal property, and includes other “serious indictable” motives that a person may have for breaking and entering into a property, such as assault, murder or sexual assault.
“Break” – what does this include?
“Breaking” into a property does not only mean actually breaking property to gain access (for example, smashing through a window or door).
“Breaking” into a property can be actual or constructive:
- Actual break – where the security of the property is violated
- Constructive break – where entry into the property is obtained by way of fraud, threats, or unlawful use of a key
Aggravating circumstances
Section 112(2) and 112(3) of the Crimes Act 1900 (NSW) refers to circumstances of ‘aggravation’ and ‘special aggravation’.
Aggravating circumstances that the Court may consider include:
- Whether you were armed with an offensive weapon or instrument;
- Whether you were with others during the offence;
- Whether you physically assaulted another person;
- Whether you inflicted actual bodily harm on another person;
- Whether you deprived someone of their liberty; and/or
- Whether you knew that someone was home during the break and enter
Special aggravating circumstances include:
- Whether you wounded or maliciously inflicted grievous bodily harm on another person; and/or
- Whether you were armed with a dangerous weapon
Other types of Break and Enter offences
“Break and Enter” offences extend to different categories.
These include:
- Break, enter and commit a serious indictable offence;
- Break and enter with intent to commit a serous indictable offence;
- Enter a dwelling house with intent to commit a serious indictable offence;
- Being armed with intent to commit an indictable offence;
- Break out of a dwelling house after committing, or with intent to commit an indictable offence;
- Being a convicted offender armed with intent to commit an indictable offence; and
- Break, enter and assault with intent to murder.
Penalties
If found guilty of a breaking and entering offence, the penalties vary depending on the severity of the offence. Often, breaking and entering carries gaol term.
Maximum penalties include:
- Break, enter and commit a serious indictable offence – 14 years imprisonment;
- Break and enter with intent to commit a serous indictable offence – 10 years imprisonment;
- Enter a dwelling house with intent to commit a serious indictable offence – 10 years imprisonment;
- Being armed with intent to commit an indictable offence – 7 years imprisonment;
- Break out of a dwelling house after committing, or with intent to commit an indictable offence – 14 years imprisonment;
- Being a convicted offender armed with intent to commit an indictable offence – 10 years imprisonment; and
- Break, enter and assault with intent to murder – 25 years imprisonment
Defending a Break and Enter
To successfully defend a break and enter charge, it must be proved beyond a reasonable doubt that the accused did not:
- Break into and enter private property without the owner’s permission; and
- Commit a serious ‘indictable offence’
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