Section 109 Crimes Act 1900 | Breaking out of dwelling-house after committing, or entering with intent to commit, indictable offence


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While it is common knowledge that it is an offence to break into a house or building, many people don’t realise that it’s also against the law to break out of a house or building after committing an offence inside.

Section 109 of the Crimes Act deals with these situations and makes it an offence to either:

  • Break out of somebody’s house after committing a ‘serious indictable offence’ inside OR
  • Break out of somebody’s house after you broke in with the intention of committing a ‘serious indictable offence.’

A ‘serious indictable offence’ is one which carries a maximum penalty of at least five years’ imprisonment. These include offences such as larceny (stealing), assault and sexual assault.

Section 109 says that if you are found guilty of either of these offences, you could face a maximum penalty of 14 years imprisonment.

Under section 109, you could also face a much harsher penalty of 20 years imprisonment if you commit either of these offences in ‘circumstances of aggravation.’ These are essentially factors which make the offence more serious. Under the law there are 6 ‘circumstances of aggravation’:

  • Where you were armed with a weapon
  • Where there was another person(s) with you who helped you carry out the offence
  • Where you used corporal violence on another person
  • Where you inflicted actual bodily harm on another person (actual bodily harm refers to injuries that are more than ‘trifling or transient,’ such as bruises or scratches)
  • Where you deprived another person of their liberty (e.g. by tying them up or locking them in a room)
  • Where you knew that there was someone inside the building that you were breaking out of

You could also face a maximum penalty of 25 years imprisonment if you commit the offence in ‘circumstances of special aggravation.’ There are three ‘circumstances of special aggravation’ under the law:

  • Where you intentionally wound or inflict grievous bodily harm on another person (a wound is where both layers of the skin are broken; grievous bodily harm is ‘really serious harm’ such as a broken bone or internal organ damage)
  • Where you inflict grievous bodily harm on another person and you are reckless as to causing that other person actual bodily harm
  • Where you are armed with a ‘dangerous weapon’ (a firearm, imitation firearm, prohibited weapon or spear gun).

While these are obviously very serious penalties, it’s important to remember that they are maximum penalties, so they only apply in the most serious cases.

An experienced criminal lawyer can help you avoid these onerous penalties by presenting your case in a positive light and raising any problems with the prosecution case.

You can read more about ‘break and enter’ offences here.

The Legislation

Section 109 of the Crimes Act 1900 deals with the offence of ‘breaking out of dwelling-house after committing, or entering with intent to commit, an indictable offence’ and reads as follows:

109 Breaking out of dwelling-house after committing, or entering with intent to commit, indictable offence

(1) Whosoever:
enters the dwelling-house of another, with intent to commit a serious indictable offence therein, or,
being in such dwelling-house commits any serious indictable offence therein,
and in either case breaks out of the said dwelling-house shall be liable to imprisonment for fourteen years.

(2) Aggravated offence A person is guilty of an offence under this subsection 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.

(3) Specially aggravated offence A person is guilty of an offence under this subsection 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.

Why Sydney Criminal Lawyers?

At Sydney Criminal Lawyers, we specialise exclusively in criminal law, which means that we have the knowledge and experience necessary to give you the best possible defence in your matter.

We frequently get charges dropped at an early stage by raising problems with the prosecution case at an early stage in the proceedings, along with any defences which might explain or justify your actions.

Where matters proceed to court, we guarantee representation by one of our senior lawyers – experienced criminal law specialists who have a proven track record of fighting and winning break and enter cases.

Alternatively, where our clients wish to plead ‘guilty’ to the charges, our skilled lawyers prepare compelling sentencing submissions which highlight any mitigating factors which should be taken into account when determining the appropriate penalty.

If you want the best result in your ‘breaking out of dwelling house after committing indictable offence’ matter, get Sydney’s criminal law experts on your side today.

Call us on (02) 9261 8881 and book your FREE first conference with our specialist lawyers.