What is Break and Enter ?

A person is guilty of the offence of Break and Enter if he enters or breaks in the place of another person without the latter’s consent, with intent to commit an offence.

There are a number of break of enter offences in NSW. They include

  • break out of a dwelling-house after committing, or enter with intent to commit, an indictable offence (s 109, maximum penalty 14 years)
  • break enter and assault with intent to murder (s 110, maximum penalty 25 years)
  • enter a dwelling house with intent to commit a serious indictable offence (s 111, maximum penalty 10 years)
  • break, enter and commit a serious indictable offence (s 112, maximum penalty 14 years)
  • break and enter with intent to commit a serious indictable offence (s 113, maximum penalty 10 years)
  • being armed with intent to commit an indictable offence (s 114, maximum penalty 7 years), and
  • being a convicted offender armed with intent to commit an indictable offence (s 115, maximum penalty 10 years).

A person can be charged with this offence if they break something like a door, gate, lock, window or they enter a house or premises and commit a serious indictable offence such as stealing or seriously assaulting someone.

Case law/Jurisdiction
An offence of Break and Enter is what is known as a Table 1 offence under the relevant legislation, which means it is to be dealt with in the Local Court of NSW unless an election is made by Department of Public Prosecutions (DPP) on indictment.

Break and Enter may be actual or constructive. Actual breaking is where the security of the house is infringed though there not need be any breaking of any object see R v Smith (1827) 1 Mood 178.

Constructive Breaking occurs when entry is obtained by fraud, or threats, or by the use of a key which the person is not entitled to use. The test is whether a person entering the house believed he had no authority to enter see R v Chandler [1913] 1 KB 125

What must the prosecution prove?

To establish Break and Enter the prosecution must prove each of the following matters beyond reasonable doubt:

      • That you broke something;
      • That that by breaking something you gained access into a house, residence or premises;
      • The that you entered the house, residence or premises; and
      • That you either stole something or committed a serious indictable offence.

The Law

Section 112 of the Crimes Act 1900 (NSW) defines Break and Enter as a person who:

  • breaks and enters any dwelling-house or other building and commits any serious indictable offence 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 and liable to imprisonment for 14 years.

An person who is charged with Aggravated offence

A person is guilty of an offence under if

  • the person commits an offence under subsection (1) in circumstances of aggravation.

A person convicted of an offence under this subsection is liable to imprisonment for 20 years.

Specially aggravated offence

A person is guilty of an offence if the person commits an offence under subsection (2) in circumstances of special aggravation.

A person convicted of an offence under this subsection is liable to imprisonment for 25 years.

If you are charged with the offence of break and enter what are your options?

National Criminal Lawyers (NCL) have been successful in defending a large number of Break and Enter charges where the prosecution could not establish each of the elements of Break and Enter. We have also achieved a number of non-convictions for Break and Enter charges.

NCL offer the following options for those who have been charged with Break and Enter:

  1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended ;
  2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
  3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing)with the view of having you sentenced less harshly; and/or
  4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Fequently Asked Questions

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. Your best chance to get the result you’re after

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. How a Senior Defence Lawyer Can Help You Deal With Criminal Charges

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

If you have been charged with any Break and Enter offence our Team and National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.

Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

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