The Offence of Break and Enter With Intent to Commit a Serious Indictable Offence in NSW

At around 3.30 am on Wednesday 15 October 2025, a group of males armed with machetes forced entry into a fast-food restaurant on Dunghutti land in the NSW town of Kempsey, threatening staff on site and stealing a silver Isuzu SUV. The group then took off in the SUV and a grey Mercedes, which had been stolen at an early point from a home in the NSW coastal town of Port Macquarie.

The group of young men then drove the stolen SUV and Mercedes to a tobacconist on Forth Street in Kempsey, broke in and stole several items. Mid North Coast police subsequently established crime scenes at the sites of both incidents on Wednesday and began their investigations.

Following police inquires, a 15-year-old boy was arrested in the Kempsey suburb of Greenhill at 11.20 am on Wednesday, while another 15-year-old male was arrested at an address in West Kempsey at 2.45 pm the following day, and he was taken to Kempsey police station and charged with eight serious criminal offences.

The second arrestee was refused bail and was to appear before the courts last Friday, 17 October 2025. The initial arrestee’s matter was still before the courts as of last Thursday.

Breaking and entering

NSW Police News reports that the second teenage boy apprehended over the armed robbery and break and enter into the tobacconist on Forth Street in Kempsey was charged with eight offences, four of which involved various break and enter crimes.

There are a number of different sections containing break and enter offences in the Crimes Act 1900 (NSW). The most common is break and enter to commit serious indictable offence, which is contrary to section 112. This offence, which comprises of either breaking into or out of a dwelling-house or other building to commit a serious crime or in the aftermath of one, carries 14 years imprisonment.

In order to show a person has committed break and enter to commit serious indictable offence, the prosecution must prove beyond a reasonable doubt that the defendant broke or forcibly gained entry, which can include simply opening or pushing an unlocked door or window, but it doesn’t include walking through an open door or further opening a window that was already ajar.

A serious indictable offence is one that carries a maximum penalty of 5 years or more, which includes the crime of stealing or larceny. The 15-year-old boy was charged with four aggravated counts of break and enter. This means that these crimes were carried out in circumstances of aggravation, or the offence was made more serious by specific factors that were involved.

When break and enter is committed in aggravated circumstances, the penalty is 20 years prison. Circumstances of aggravation include being armed with an offensive weapon, being ‘in company’ or with at least another person, using violence when committing the offence, inflicting actual bodily harm on a person or depriving them of liberty, or knowing that at least one person was inside.

The 15-year-old boy is set to be tried on one count of aggravated break and enter while people were inside, another count of aggravated break and enter whilst armed, and two counts of break and enter whilst in company to steal.

A break and enter offence can be specially aggravated when the offender has committed an aggravated break and enter crime and has intentionally wounded or committed grievous bodily harm against another or used a dangerous weapon in the commission of the offence. Specially aggravated break and enter offences carry up to 25 years.

In NSW, dangerous weapons are considered firearms or prohibited weapons, while the category of offensive weapon is broader, as it includes dangerous weapons, as well as more makeshift instruments adapted for offensive purposes.

Other offences involved in the Kempsey incident

The 15-year-old is further facing one count of robbery whilst armed with an offensive weapon, contrary to section 97 of the Crimes Act. This crime, which can include assaulting a person with intent to rob, carries up to 20 years inside. However, if the weapon involved is a dangerous weapon, a convicted individual is liable to up to 25 years imprisonment.

The teenager has also been charged with participating in a criminal group, contrary to section 93T of the Crimes Act. This carries up to 5 years gaol time, when it’s shown that an accused knowingly participated in a group involved in criminal activity. However, if it is shown that an individual was directing a criminal group’s activities, then the maximum jumps to 10 years.

A 10 year maximum also applies to this offence when it is shown a person assaulted another or committed property damage, while participating in a group. If a person assaults a police officer in the line of duty, as part of being in the criminal group, the maximum that applies is 14 years, while directing a criminal group on an ongoing basis, can see a person put away for up to 15 years.

The final charges the young defendant is facing are two counts of taking a conveyance without consent, contrary to section 154A(1)(a) of the Crimes Act. This offence, which involves taking a conveyance or vehicle, as in a type of car, motorcycle, caravan, bicycle or various types of vessels, carries up to five years prison time.

Crackdown on regional break and enter

The latest figures from the NSW Bureau of Crimes Statistics and Research or BOCSAR cover the June 2025 quarter, and they reveal that the crime of break and enter-dwelling has trended downwards by 10.2 percent over the last two years, and it’s dropped by 5.5 percent over the last 10, while break and enter non-dwelling had dropped by 3.1 and 3.7 percent, respectively.

Despite break and enter crimes generally declining over the last decade, the Minns government passed tough-on-crime laws in March 2024, to crackdown on youth-perpetrated break and enter and motor vehicle crimes being committed by youths while on conditional release in rural areas of NSW.

NSW Labor also passed a new posting and boasting offence that adds 2 years to a crime’s maximum penalty if a person is found to be bragging about their criminal wrongdoing online.

Yet, this regional crime crackdown appears to be targeting First Nations youth, as the Aboriginal Legal Service NSW/ACT noted last February that these laws had resulted in an 80 percent spike in the number of alleged child offenders being refused bail, with 88 percent of those captured under these laws being Aboriginal kids, while they accounted for 90 percent of those detained under the new law.

Yet, while these figures might sound like progress to government ministers in the chambers on Macquarie Street, advocates for Indigenous youth are clear that these laws are setting up these children for a life stuck in the revolving door that is the NSW criminal justice system.