Break and enter

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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

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.

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.

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.

Pleading Guilty

If you agree that you have committed the offence and the police are able to prove all the element of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining a non-conviction or section 10.

Maximum Penalties

Break and Enter can be punished with a prison sentence of up to 2 years (if heard in the Local Court) or up to 14 years (If heard in the District Court).

If it is an “Aggravated offence” the maximum period imprisonment increases up to 20 years.

If it is a “Specially aggravated offence” the maximum imprisonment is up to 25 years.

Please note these penalties are reserved for the worst cases of offending.

Pleading Not Guilty

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.

A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.

National Criminal Lawyers have defended thousands of people charged with Break and Enter and are experts at these hearings.


Some of the possible defences available for those charged with Break and Enter can include:

  • To maintain your innocence if you did not commit the act;
  • To argue that you did not break anything;
  • To argue that what you broke did not allow you to access the house or premises;
  • To argue that you did not enter the house or premises;
  • To argue that you did not steal anything or that you did not commit a strictly indictable offence; or
  • Duress – If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue- Duress.
  • Necessity – If your actions were necessary to prevent a greater harm from occurring, you may have the defence of-Necessity.


For non-aggravated B & E and steel 81% of offenders received a custodial sentence. The custodial rate for ‘Circumstances of aggravation’ which includes having a weapon, being in the company of another person or knowing that there is someone else inside the house is even higher.

Possible Penalty's

In NSW, a court can impose any of the following penalties for a Break and Enter charge.

  • Prison sentence
  • Home Detention
  • Intensive correction order (previously periodic detention)
  • Suspended sentence
  • Community service order (CSO)
  • Good behaviour bond
  • Fine
  • Section 10

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

  • Full time Imprisonment
  • New ICO (ICO) with a home detention condition available
  • New Community Correction Order (CCO)
  • Fine
  • New Conditional release Order (CRO)

Case Studies

Our Criminal Lawyers assisted in a highly-publicised ‘break, enter’ case which was heard in the District Court of NSW. After a night out with some friends our client, a 19-year-old man, was hanging out outside a night club with three friends. The night club was located at the entrance to a popular mall area adjacent to other buildings however the mall was closed. While the clients  friends were allowed entry to the night club he was refused. Our client then decided to try and climb over the adjourning property and enter through the roof into a shop building in the hope it would lead to a back door where he could sneak into the nightclub. Our client after entering the adjacent property could not find any door, was kept locked inside the premises until they were opened the next day and upon being found was charged with ‘break and enter with intent to steal.

After a lengthy trial and evidence in chief, we made verbal submissions on the evidence of our client which was he never at any time had intent to steel. The judge was ultimately persuaded to acquit the client. This meant that the client escaped a criminal record, which would have had a detrimental impact on his life and future.

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. We get the results

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. We give a Senior Defence Lawyer guarantee

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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