Possess housebreaking implements

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What is Possess Housebreaking Implements?

It is an offence to possess an item that could be used to break into a house without any legal reason. It is also an offence to have an item that could be used to break into or drive a car or other vehicle without any legal reason.

Case law/Jurisdiction

An offence of possess housebreaking instruments is what is known as a Table 2 offence under the relevant legislation, which means it is to be dealt with in the Local Court unless an election is made for trial on indictment by the Department of Public Prosecutions (DPP).

The nature and elements of the offence of possess housebreaking implements were considered in R v Reynolds (unrep, 22/08/86, NSWCCA) at 6. Here it was said that the offence is proved where the Crown establishes beyond reasonable doubt that the accused had in his or her possession implements “capable” of being used for house breaking or such.

It is not necessary for the Crown to prove that the accused had the implements in his or her possession for the “purpose” of house, safe or conveyance breaking, or with the intention of committing any specific offence of that kind.

The Law

The offence of Possess House Breaking Implement is contained in section 114(1)(b) of the Crimes Act 1900 (NSW) and states:

Any person who has in his or her possession, without lawful excuse, any implement of housebreaking or safe breaking, or any implement capable of being used to enter or drive or enter and drive a conveyance

What must the prosecution prove?

Since Possess House Breaking Implement is a criminal offence, the burden of proof lies on the Prosecution.

The prosecution must prove the Accused’s guilt beyond reasonable doubt.

That is a high standard of proof that the prosecution must achieve before someone can be convicted of Possess House Breaking Implement.

To establish Possess House Breaking Implement, the prosecution must prove each of the following matters beyond reasonable doubt:

  • That you were in possession of an item;
  • That the item could be used to break into a house or car; and
  • That you had no lawful excuse to have that item.

If you are charged with the offence of Possess House Breaking Implement what are your options?

National Criminal Lawyers have been successful in defending a large number of Possess House Breaking Implement charges where the prosecution could not establish each of the elements of Possess House Breaking Implement. We have also achieved a number of non-convictions for Possess House Breaking Implement charges.

NCL offer the following options for those who have been charged with Possess House Breaking Implement:

  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 elements 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

Possess House Breaking Implement can be punished with a prison sentence of up to 2 years (if heard in the Local Court) or up to 7 years (If heard in the District Court).

Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.

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 Possess House Breaking Implement and are experts at these hearings.


Some of the possible defences available for those charged with Possess House Breaking Implement can include:

  • To argue that you were not in possession of the item;
  • To argue that the item could not be used to break into a house or car;
  • To argue that you have a lawful excuse for possessing that item, such as your employment or recreational activities; 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


The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:

“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.

For possession of house breaking implements 40% of offenders received a full-time prison sentence whereas 25% received a s9 good behaviour bond.

Possible Penalty's

In NSW, a court can impose any of the following penalties for a possession of house breaking implements 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

Police found a large number of items in our client’s vehicle and charged him with possess housebreaking implements. He was not the only occupant of the motor vehicle and pleaded not guilty. He was convicted in the Local Court and sentenced to 3 month’s imprisonment. We represented our client in his appeal against conviction in the District Court. The appeal judge found that he could not be satisfied that our client had possession of the property and quashed the conviction. Our client was immediately discharged.

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 Possess Housebreaking 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.

Book your first free appointment with National Criminal lawyers now.
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