Break & Enter Offences

The most common form of this type of offence is called, “break and enter” which is defined in section 112 of the Crimes Act 1900 (NSW). This offence is committed when a person enters a building or part of a building without the owner's consent and with the intention of committing a serious indictable offence, such as theft or assault. The maximum penalty for this offence is imprisonment for 14 years. 

The Prosecution must prove three essential elements, beyond reasonable doubt, for you to be found guilty of this offence, namely: 

• You broke the seal of the property: The term “break” is often misunderstood to mean a door or window was broken to gain access to the property, and while this certainly would constitute a “break”, it also extends to opening a closed but unlocked door, and opening a window to gain entry to the building. 
• You gained entry to the property: The Prosecution must adduce evidence to show you were inside the building. Often, they might rely upon DNA or fingerprint evidence to prove this element, or the statement of the occupant or other witness.  
• You committed a serious indictable offence while in the property: A serious indictable offence is defined as any offence which has a maximum penalty of five years imprisonment or more. This can include stealing, serious assault, or intimidation, for example. 

The maximum penalty increases to 20 years imprisonment if the house-breaking was committed in any of the following circumstances: 

• The accused person is armed with an offensive weapon or instrument such as a knife; 
• The accused person is in the company of another person or persons; 
• The accused person uses corporal violence, such as pushing, on any person; 
• The accused person causes actual bodily harm to any person, such as bruising and cuts; 
• The accused person deprives any person of their liberty; or 
• The accused person knows that there is a person or persons in the building. 

If the house-breaking was committed in any of the above circumstances and the accused person wounds or causes any person grievous bodily harm or is armed with a dangerous weapon such as a gun, the maximum penalty increases to 25 years imprisonment. 

If the Prosecution cannot prove you broke the seal of a house to gain entry, they may charge you with enter dwelling-house with intent to commit a serious indictable offence pursuant to s 111 Crimes Act 1900 (NSW). This offence carries a maximum penalty of 10 years imprisonment.  

The Prosecution must prove the following essential elements, beyond reasonable doubt, for you to be found guilty of this offence, namely: 

• You entered a dwelling-house: This term refers to a person’s home and does not include any other type of building. As with a s 112 offence, the Prosecution must adduce evidence to show you were inside the house. 
• You had intent to commit a serious indictable offence: Unlike the s 112 offence, the Prosecution do not need to prove that you committed an offence while inside the house, but rather they need to adduce evidence to establish that you intended to commit a serious indictable offence therein. For example, if Police have CCTV footage of you rummaging around the living room of a house, they may allege you intended to steal something.  

If you committed a s 111 offence in the same aggravating and specially aggravating circumstances noted in relation to a s 112 offence, the maximum penalty increases to 14 years and 20 years imprisonment, respectively.