The Criminal Offence of Breaking and Entering in New South Wales

A man is accused of breaking into a property in rural New South Wales and stealing farm equipment.

According to police, the 38-year old entered the property near Muswellbrook – a town in the Upper Hunter Region of New South Wales around 240 kilometres north of Sydney – during the night of Thursday the 10^th and morning of Friday the 11^th of August 2023 and broke into a shed, stealing farm equipment including a spray rig and mulcher.

Police were called to the property on the afternoon of Friday the 11^th in response to a report from the owners.

Investigations by officers from the Hunter Valley Police District Rural Crime Prevention team informed an application for a search warrant on a property in Muswellbrook Shire, which was duly granted and executed on the property.

Police allege that items seized during the break and enter were found at the property, and the occupier was arrested, conveyed to Muswellbrook Police Station and charged with a string of offences including break and enter property and commit a serious indictable offence, larceny being in possession of goods reasonably suspected of being stolen, taking and driving a conveyance without the consent of the owner and intentionally or recklessly destroy or damage property.

The defendant appeared before Muswellbrook Local Court on the morning of Tuesday, the 14^th of August 2023 where he was formally refused bail.

His matter has been adjourned to the same court on the 29^th of August 2023.

Break and enter offences in New South Wales

Offences relating to breaking and entering into homes and other premises in our state are primarily contained in sections 112 and 113 of the Crimes Act 1900 (NSW), each of which contain three discrete crimes.

The offence of breaking, entering and committing a serious indictable offence

Section 112 of the Act is titled ‘Breaking etc into any house etc and committing serious indictable offence.

Subsection 112(1) is the least serious category of the offence and carries a maximum penalty of 14 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You broke into and entered a premises,
2. You committed a serious indictable offence while there, and
3. The premises was a dwelling house or other building.

What is a ‘break’?

The Crimes Act does not define ‘broke’ or ‘break’.

However, the the courts have found it means to ‘forcibly gain entry’, and can include:

1. Unlocking a door or window,
2. Pushing open a closed but unlocked door,
3. Opening a closed but unlocked window, and
4. Raising a latch or loosening a fastening to secure entry.

The courts have found that it may not include:

1. Walking through an open door, or
2. Further opening a window that is already significantly ajar.

What is a ‘dwelling house’?

A ‘dwelling house’ is defined as:

1. Any structure intended for occupation as a dwelling and capable of being so occupied, even if it has never been occupied
2. A vehicle or boat in or on which a person resides, and
3. Any structure that is ancillary to the dwelling.

What is a ‘serious indictable offence’?

A ‘serious indictable offence’ is one that carries a maximum penalty of at least 5 years in prison.

This encompasses most offences in the Crimes Act 1900, including stealing (also known as larceny) and assaults which case actual bodily harm, wounding or grievous bodily harm, and intentionally or recklessly damaging or destroying property.

Aggravated offence – section 112(2)

The maximum penalty increases to 20 years in prison where the offence is committed in circumstances of aggravation, which is where you:

1. Were armed with an offensive weapon or instrument,
2. Were with at least one other person,
3. Used corporal violence,
4. Intentionally or recklessly inflicted actual bodily harm,
5. Deprived a person of their liberty, or
6. Knew there was at least one person in the dwelling.

‘Offensive weapon or instrument’ means:

1. A dangerous weapon, or
2. Anything made or adapted for offensive purposes, whether or not it is ordinarily used as a weapon or capable of causing harm.

Specially aggravated offence – section 112(3)

The maximum increases to 25 years where you:

1. Intentionally wounded or inflicted grievous bodily harm,
2. Inflicted grievous bodily harm and were reckless as to causing actual bodily harm, or
3. Were armed with a dangerous weapon.

A ‘dangerous weapon’ is defined as:

1. A firearm or imitation firearm,
2. A prohibited weapon, or
3. A spear gun.

The offence of breaking and entering with intent to commit a serious indictable offence

Section 113 of the Crimes Act is titled ‘Breaking etc into any house etc with intent to commit serious indictable offence’.

Subsection 113(1) is the least serious category of the offence and carries a maximum penalty of 10 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You broke into and entered a premises,
2. You intended by doing so to commit a serious indictable offence while there, and
3. The premises was a dwelling house or other building.

The definitions of ‘break’, ‘dwelling house’ and ‘serious indictable offence’ are the same as those which apply to section 112 of the Act.

Aggravated offence – section 113(2)

The maximum penalty increases to 14 years in prison 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 for section 112(2).

Specially aggravated offence – section 113(3)

The maximum increases to 20 years where you:

1. Intentionally wounded or inflicted grievous bodily harm,
2. Inflicted grievous bodily harm and were reckless as to causing actual bodily harm, or
3. Were armed with a dangerous weapon.

A ‘dangerous weapon’ has the same meaning as that which applies to section 112(3).

Defences to the charges

If you have been charged with a break and enter offence and are able to raise evidence of a legal defence, the onus then shifts to the prosecution to prove beyond reasonable doubt that the defence does not apply to the circumstances of your case.

If it is unable to do so, you are entitled to an acquittal; in other words, a verdict of not guilty.

Legal defences to break and enter charges include self-defence, duress, necessity and having a claim of right over the property.

Self-defence is where you believed your actions were necessary to defend yourself or another person, or to prevent the unlawful deprivation of your liberty or that of another person, or to protect your property from being taken, destroyed, damaged or interfered with, or to prevent criminal trespass to your land, or remove a person criminally trespassing, and your conduct was a reasonable response to the circumstances as you perceived them at the time.

Duress is where your conduct arose due to an imminent threat made to you or someone close to you, in circumstances where the threat was continuing and serious enough to justify your actions.

Necessity is where you engaged in your actions to avoid serious, irreversible consequences to you or someone you were bound to protect, you honestly and reasonably believed you or the other person were immediate danger and your actions were a reasonable and proportionate response to the danger.

And claim is right is a defence to the larceny element of any break and enter charge; for example, where the alleged serious indictable offence is stealing, or intending to steal, from the dwelling-house or building. You have a claim of right to property in the premises if you genuinely believed you were legally entitled to it.

Get the best defence for a break and enter offence

If you are accused of a break and enter offence, it is important to secure the services of specialist criminal defence lawyers with a proven track record of defending and winning these cases.

The defence team at Sydney Criminal Lawyers has decades of experience having break and enter charges ‘dropped’ in a timely manner through identifying inconsistencies, deficiencies and other flaws in the prosecution cases, as well as available legal defences, and intensely negotiating withdrawal, as well as having cases thrown out of court if they proceed to a hearing or trial.

Our experienced lawyers have been able to win these types of cases where the prosecution cases initially appeared overwhelming, and even in circumstances where lawyers for co-defendants have been unable to achieve equivalent results despite the evidence against each accused appearing to be similar.

Where the prosecution evidence is overwhelming and the charges are extremely serious, our defence team has been able to achieve ‘non-conviction orders’; which is rare in these types of cases.

Our team has achieved this through tactical formulation, thorough preparation and effective execution of case strategies that achieve results.

So if you or a loved-one are going to court for a break and enter offence, call us anytime to arrange a consultation with one of our senior lawyers and let us look after the legal side of things, so you can get on with your life.