Why break, enter and steal is not “just a burglary”: how section 112 is actually prosecuted in NSW

People use the word burglary casually, and it does the charge no justice at all. In NSW there is no offence called burglary. What exists instead is a graduated set of break and enter offences with maximum penalties ranging from 14 years to 25 years, standard non-parole periods attached to the aggravated forms, and a bail position that regularly sees people remanded from the first mention.

If you or a family member has been charged with breaking, entering and committing a serious indictable offence, the gap between what people expect and what the law actually provides is wide – and it matters from the first court date.

The offence and its tiers

The core provision is section 112 of the Crimes Act 1900 (NSW)). A person who breaks and enters any dwelling-house or other building and commits any serious indictable offence in it is liable to imprisonment for 14 years. Where the offence is committed in circumstances of aggravation, the maximum is 20 years. In circumstances of special aggravation, it is 25 years.

The serious indictable offence is usually stealing, which is why the charge is commonly written as break, enter and steal. But it need not be. Break, enter and commit assault, or break, enter and commit an intimidation offence, sit under the same section.

The circumstances of aggravation are defined in section 105A and include being armed with an offensive weapon or instrument, being in company with another person, using corporal violence, inflicting actual bodily harm, depriving a person of liberty, and knowing there is a person in the place. Special aggravation involves matters such as wounding or inflicting grievous bodily harm, or being armed with a dangerous weapon.

Two of those catch people out badly. Being in company means that two people going in together face a 20 year maximum rather than 14. And knowing that someone is home converts what the accused thought was an empty house into an aggravated offence.

What “break” actually means

Far less than people assume. Breaking does not require damage, force or a smashed window. It includes opening a closed door, lifting an unlocked window, or removing any part of the structure that closes the premises. Entering through an already open door is not a break – but pushing a door further open is.

The Act also creates related offences. Entering with intent to commit a serious indictable offence, and breaking out after committing one, are covered by section 113 and the surrounding provisions). Where a person is found in or around premises without lawful excuse but nothing has been taken, the charge may instead be being armed with intent, or the possession offences we cover in our article on unlawful possession of goods.

The evidence these cases turn on

Break and enter is one of the most forensically investigated offence categories in NSW. DNA from points of entry and handled items, fingerprints, CCTV from the premises and the surrounding streets, ANPR data placing a vehicle in the area, telecommunications data placing a handset in the cell sector, and the recovery of property are all standard.

Each is contestable. DNA at a point of entry establishes contact, not necessarily contact at the time of the offence, and secondary transfer is a real phenomenon. Cell site data locates a handset within a sector that may cover a large area, not at an address. CCTV identification of a masked or partially obscured person is notoriously unreliable, and identification evidence has strict admissibility rules.

Where property is later found in someone’s possession, the prosecution will often run the matter on recent possession reasoning – inviting the inference that the possessor was the person who took it. That inference can be displaced by an explanation, and the burden of proof does not shift.

Bail is the immediate battle

Aggravated break and enter offences frequently engage the show cause regime, and where a person is alleged to have offended while on bail the position is harder again. For young people, the additional section 22C test applies to certain serious break and enter offences committed while already on bail for a similar offence.

The remand consequences are not abstract. BOCSAR reports the NSW adult prison population at record levels driven largely by remand). A properly prepared first application, with accommodation, employment and supervision addressed, matters more here than almost anywhere else – the framework is set out in our article on what show cause bail requires.

Sentencing and what actually helps

Standard non-parole periods apply to the aggravated and specially aggravated forms, and full-time custody is the ordinary outcome for anything beyond the lowest range. Courts treat the invasion of a home as a serious aggravating feature in itself, independent of what was taken.

What moves outcomes is the material that explains the offending and addresses its causes. Drug dependence is present in a very large proportion of these matters, and evidence of engagement with treatment carries real weight. Where a diagnosed condition contributed, the diversionary pathways in our guide to section 32 and section 14 mental health applications may be available in the Local Court. Restitution, where possible, matters. And the range of available outcomes is broader than people assume, as our guide to primary sentencing outcomes in NSW explains.

Property offending is tracked closely in BOCSAR’s quarterly recorded crime statistics and crime trends dashboard), and enforcement in this category is consistently resourced.

The misconceptions that cause the most harm

Three come up repeatedly. The first is that nothing was taken, so it cannot be break and enter – but entering with intent is its own offence, and the completed offence does not require the intended crime to succeed.

The second is that being the driver, or waiting outside, means you are not really involved. Accessorial liability and joint criminal enterprise attach full liability to a person who assisted or agreed to the plan, and being in company is itself a circumstance of aggravation that lifts the maximum to 20 years. The lookout and the driver are frequently exposed to exactly the same charge as the person who went in.

The third is that a home occupied at the time is just an unlucky detail. Knowing that a person is in the place is a defined circumstance of aggravation. Where the Crown alleges that knowledge, it must prove it – and whether the accused knew, as opposed to whether someone happened to be home, is a genuinely contestable question that is too often conceded without thought.

If police have contacted you

Do not participate in an interview before getting advice. In break and enter matters the forensic evidence is usually already in hand, and the interview exists to place you at the scene or to explain away an inconsistency you do not yet know about. Our article on the reality of the right to silence in NSW explains why declining is not an admission.

Do not dispose of anything and do not contact any co-accused. Where charges are ultimately withdrawn, costs may be recoverable, as our guide to costs in NSW criminal cases sets out.

Contact Us

Section 112 is not a minor property charge. It carries maximums of 14, 20 or 25 years depending on features that can turn on whether someone was home or whether a second person came along, and it produces custody and remand outcomes that surprise almost everyone charged.

At National Criminal Lawyers, we defend break and enter matters across NSW Local and District Courts. We test forensic and identification evidence properly, we argue aggravation features rather than conceding them, and we prepare bail applications that address the risks a court is actually weighing.

Call us at 1800 CRIM LAW for a free consultation. Help us help you understand your situation and get you the best outcome possible.