Being charged with a criminal offence such as ‘break and enter’ is often a distressing and unsettling experience for yourself and your family.
But with the help of an expert criminal lawyer, you can maximise your chances of getting the best possible result.
What is the Offence of Breaking and Entering
There are a range of break and enter offences contained within the Crimes Act, each of which carries a different penalty. Perhaps the most commonly prosecuted offence is that of ‘break, enter and commit a serious indictable offence,’ under s 112 of the Crimes Act, which covers the offence of ‘break, enter and steal.’
If you’ve been charged with a break and enter offence, you may be wondering how the charge may affect you and your future.
In the sections below, you will find detailed information about what the prosecution needs to prove if you’ve been charged with a break and enter offence, as well as the types of penalties that you may be facing.
We have also provided some information about the various types of break and enter offences under the Crimes Act, and a detailed explanation of ‘aggravating circumstances.’
Please read on to find out what a ‘break and enter’ charge means for you.
Other break and enter offences
- Under s 113 of the Crimes Act, there is a separate offence of ‘break and enter with intent to commit a serious indictable offence.’ This means that you can still get into trouble where you don’t commit a serious indictable offence – for example, where the homeowner catches you before you steal anything.
- You can also be charged under s 114 of the Crimes Act where you are caught upon enclosed lands armed with a weapon, instrument, housebreaking instrument, or disguises. For example, if you are caught in someone’s backyard dressed in a balaclava and holding bolt cutters.
- You can also face harsher penalties where you’ve previously been convicted of an indictable offence and you are found armed with a weapon, with the intention of committing a serious indictable offence.
Aggravating circumstances are factors which make the offence more serious.
The court may therefore impose a harsher penalty where the prosecution proves that you committed an offence in ‘aggravating circumstances.’
Aggravating circumstances may occur before, during or after the offence. They include situations where:
- You are armed with an ‘offensive weapon or instrument’: An ‘offensive weapon or instrument’ broadly includes anything that has the potential to inflict harm upon another person. It can include things like firearms, knives, baseball bats, and syringes. However, it can also refer to things that are not generally considered weapons – such as cars and broken bottles. You don’t actually have to use the weapon – it will be enough that you had it on you.
- You are in the company of one or more other persons: This means that the prosecution must show that there was at least one other person physically present at the time of the offence, and that they shared a common purpose with the accused. The court will consider the effect of the group as a whole in committing the act or intimidating the victim. It won’t be enough to show that the other person participated in the offence without being physically present – e.g. where someone acted as a lookout or assisted in planning the offence.
- You inflict corporal violence upon another person: Corporal violence refers to physical injury done to another person.
- You inflict actual bodily harm on another person: Actual bodily harm refers to harm that has some form of lasting impact – but it doesn’t have to be permanent. Examples of actual bodily harm include bruises or scratches, and can include emotional harm where there is evidence of serious, lasting psychiatric harm.
- You deprive someone of their liberty: This involves confining or detaining someone against their will – for example, by tying someone up, locking them in a room, or pinning them down.
- You knew that there was someone inside the property where you committed the offence.
In addition, there are two ‘circumstances of special aggravation’ that the court recognises. If either of these is proved, you may face even harsher penalties:
- You wound or maliciously inflict grievous bodily harm upon another person: Grievous bodily harm refers to any ‘permanent or serious disfiguring’ of another person. An example would be where you stab or shoot someone in the course of breaking into a property.
- You are armed with a dangerous weapon: ‘Dangerous weapons’ include things such as firearms and other prohibited weapons.
What are the Penalties?
There are a range of maximum penalties depending on the type of break and enter offence that you have been charged with. However, these are maximum penalties only, meaning that they are usually reserved for only the most serious matters:
|Break, enter and commit a serious indictable offence.||14 years imprisonment.|
|Break and enter with intent to commit a serious indictable offence.||10 years imprisonment.|
|Enter a dwelling house with intent to commit a serious indictable offence.||10 years imprisonment.|
|Being armed with intent to commit an indictable offence.||7 years imprisonment.|
|Break out of a dwelling house after committing, or with intent to commit an indictable offence.||14 years imprisonment.|
|Being a convicted offender armed with intent to commit an indictable offence.||10 years imprisonment.|
|Break, enter and assault with intent to murder.||25 years imprisonment.|
In deciding what kind of penalty is appropriate, the court will consider the ‘seriousness’ of the offence based on all the facts and circumstances.
The types of things that the court might look at include:
- Whether you were on bail or parole when you committed the offence;
- Whether you planned the offence prior to committing it, and the level of planning involved;
- Whether the offence was committed in the presence of elderly, sick or disabled persons;
- Whether you vandalised or damaged the property;
- Whether you repeatedly targeted a particular property;
- How valuable the property was (in terms of monetary and sentimental value);
- The amount of force used;
- Trauma suffered by the victim.
Statistics indicate that around half of all offenders convicted of a break and enter offence go to gaol. Persons convicted of an ‘aggravated’ break and enter offence were more likely to go to gaol (64% compared to 49% of non-aggravated offenders). You’re also more likely to end up in gaol if you’ve had a prior criminal record.
However, with the help of an expert criminal lawyer, you may be able to avoid gaol altogether.
An experienced criminal lawyer will be able to explain the charges and possible penalties to you, and identify any defences that you might be able to raise in court.
At Sydney Criminal Lawyers®, we’re here to help you achieve the best possible result. We know how much your freedom means to you, so we strive to ensure that our clients stay out of gaol by raising issues with the prosecution case at an early stage.
We have years of experience fighting all types of break and enter charges – so whether you matter is serious or trivial, we have the skills and knowledge to ensure that our clients get the best outcome every time.
What Does the Prosecution Have to Prove?
To be found guilty of ‘break, enter and commit a serious indictable offence,’ the prosecution must prove several ingredients or ‘elements’ of the crime beyond a reasonable doubt. Unless they are able to do so, you will be found ‘not guilty.’
1. That you broke into and entered private property without the owner’s permission
The prosecution must be able to show that you broke into and entered private property without the owner’s permission.
Private property can include someone’s home, car, caravan or boat, or commercial properties such as a business, place of worship or a school.
It’s important to note that you don’t actually have to ‘break’ or forcefully open a window or door to satisfy this element. The prosecution may still be able to prove that you ‘broke and entered’ where you entered the property through an unlocked but closed door, window or gate.
The prosecution may also prove that you committed a ‘break and enter’ where they can show that you obtained entry into the premises by fraud, threat or by using a key without the owner’s permission.
However, the prosecution will not be able to make out this element where you can prove that the door, window or gate was already physically open – for example, where a window is left open and you climb through the window.
2. That you committed a serious ‘indictable offence’
An ‘indictable offence’ is one which has carries a maximum penalty of at least five years’ imprisonment. Examples of indictable offences include larceny (stealing) and assault.
What are the Defences?
Some commonly raised defences in relation to ‘break and enter’ include:
Your Options in Court
Pleading Not Guilty
To be found ‘guilty’ of a break and enter offence, the prosecution must prove at least two things beyond a reasonable doubt – otherwise you will be found ‘not guilty’:
1. That you broke into and entered private property without the owner’s permission
2. That you committed a serious indictable offence (an offence carrying a period of imprisonment of 5 years or more, such as larceny or assault)
If you feel that the prosecution will not be able to prove the above elements, our highly experienced criminal lawyers can help you fight the charges in court by casting doubt on the prosecution case.
We can also push to have the charges dropped at an early stage by raising any possible defences to explain or justify your actions – sparing you the time and expense of a defended hearing.
Some commonly raised defences in relation to ‘break and enter’ include:
- Where someone coerced or threatened you into committing the break and enter (duress)
- Where you committed the break and enter to prevent serious injury or death to another person (necessity)
- Where the owner of the property gave you permission to break and enter
If you’ve been charged with a ‘break and enter,’ it’s important that you seek advice from an experienced and reputable lawyer.
Our expert defence team can help you understand the law, and will fight hard to have the charges dropped so that you can get on with your life as quickly as possible without worrying about the impact of a criminal conviction.
If you are willing to accept the charges against you, you may simply wish to plead ‘guilty.’
By pleading guilty at an early stage, you will show the court that you have accepted responsibility for your actions. This can often help you achieve a better outcome in your case, as the magistrate will generally give you a ‘discount’ on your sentence.
If you decide to plead ‘guilty,’ you will proceed straight to sentencing, which is where the magistrate determines the penalty that you will receive.
This means that you will not have to go through a defended hearing, which can be a costly and time-consuming process.
However, before pleading guilty, you should always speak to an experienced criminal lawyer, who will be able to advise whether there is any way to fight the charges and secure a verdict of ‘not guilty.’
You should also be aware of the maximum penalties that may apply in your case, which vary depending on the type of ‘break and enter’ offence that you have been charged with.
While these penalties may seem harsh, it’s important to remember that they are maximum penalties and will only apply in the most serious cases.
If you wish to plead guilty, our criminal law specialists can help persuade the magistrate to impose a much lesser penalty and avoid gaol altogether.
In fact, if the circumstances of your offence are less serious and you are able to prove that you are a person of good character, our outstanding advocates may be able to help you escape a conviction altogether.
In deciding what kind of penalty is appropriate, the magistrate will consider the ‘seriousness’ of the offence based on the facts and circumstances of your case – for example, they may consider whether the break and enter was planned, whether you were on bail or parole at the time of the offence, and the amount of damage done to the property.
The types of penalties that the magistrate can impose include:
- Section 10 Dismissal
- Conditional Release Order
- Community Correction Order
- Intensive Correction Order
In deciding what kind of penalty is appropriate, the court will consider the ‘seriousness’ of the offence based on all the facts and circumstances – for example, they may consider whether the break and enter was planned, whether you were on bail or parole at the time of the offence, and the amount of damage to the property.
Remember, you can increase your chances of getting a more lenient penalty by engaging a specialist criminal defence lawyer, who has the knowledge and experience to ensure that you get the best possible outcome.
Frequently Asked Questions
Why Choose Sydney Criminal Lawyers®?
Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with. Here are 12 reasons to choose our multi-award winning legal team:
Proven Track Record of Exceptional Results
Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases.
Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial.
Where cases nevertheless proceed, our lawyers have an outstanding track record of winning defended Local Court hearings, and complex jury trials in the District and Supreme Courts.
We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.
Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.
Highest Level of Client Satisfaction
We have the best and most comprehensive client review record of any law firm in Australia.
Regular communication, accessibility and quality service are our team’s highest priorities.
We are committed to thoroughly explaining all steps involved in the criminal law process, providing regular updates throughout the proceedings, and making ourselves accessible and responsive.
We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.
Australia’s Most Awarded Criminal Law Firm
We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.
The awards recognise our exceptional track record of results, our outstanding client service, the high level of satisfaction we achieve, the affordability of our services and our overall excellence.
We want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004.
We offer fixed fees for most types of criminal cases and services.Our fixed fees apply to a range of Local Court cases such as drink driving, drug possession, fraud, common assault and AVOs, and also specific services such as prison visits, bail applications, appeals and defended hearings.
Unlike many other law firms, our fixed fees are published on our website – which ensures transparency and certainty.
Free First Appointment
For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.
We also offer a free first conference to those who have received an unsatisfactory result after being represented in court by another law firm, or after representing themselves, and wish to appeal.
Specialist Lawyer Guarantee
We guarantee that only lawyers with substantial criminal defence experience will work on your case and appear for you in court.
This ensures our clients receive the highest quality representation from an experienced, specialist criminal lawyer.
All NSW Courts
From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.
And we offer fixed fees for most criminal and traffic law cases throughout the state.
Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.
All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.
An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.
Accredited Specialists are required to undertake more training each year than other lawyers and must be successful in having their accreditation renewed every year. Specialist Accreditation is the mark of a true specialist.
Our firm’s specialist experience ensures you receive the best possible result, whatever your criminal law case may be.
Results-Focused Law Firm
Our team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet.
The absence of budgets means our lawyers are entirely focused on achieving optimal results in the shortest space of time; whether by getting charges dropped or downgraded at an early stage or having cases ‘thrown out of court’.
Not having budgets also means our lawyers are not under pressure to engage in unscrupulous practices such as unnecessarily adjourning cases or ‘overcharging’ clients – which, sadly, is a common complaint against many other lawyers and law firms.
No budgets encourages regular consultation between lawyers within the firm – promoting an ‘open door’, team environment where lawyers bounce ideas off one another, formulate case strategy together and benefit from each other’s specialised experience, methods, techniques and insights.
The result is a firm which delivers optimal outcomes in the shortest time periods, at the least expense and stress to our clients.
Team of Lawyers Behind You
Our clients benefit from the pool of knowledge that only an extensive team of experienced criminal defence lawyers can provide.
Our lawyers regularly consult one another to stay ‘ahead of the pack’ in the ever-changing field of criminal law – constantly devising, refining and implementing specialised techniques which ensure our clients achieve the best possible outcomes.
A team approach is particularly important when it comes to serious criminal cases such as murder, commercial drug cases, serious and sexual assaults, large-scale fraud, robbery and other ‘indictable’ cases.
In such matters, clients reap the benefits of several lawyers devising and executing case strategies which maximise the chances of having cases dropped or downgraded at an early stage, or ‘thrown out of court’ – often saving clients a great deal of cost, time and anxiety.
Familiar with Magistrates and Judges
Each of our lawyers appears in court on a daily basis, and has done so for years. We have therefore been able to develop an understanding of, and rapport with, magistrates and judges in Sydney and indeed across the state.
Our team’s extensive experience before the courts ensures your case is tailored to the specific nuances of individual judicial officers, maximising the likelihood of a favourable result.
We have offices in locations across the Sydney Metropolitan Area and beyond, including:
- the Sydney CBD, on Castlereagh Street, directly opposite Downing Centre Court,
- Liverpool, directly opposite Liverpool Local Court, and
- Parramatta, near the justice precinct.
We offer free parking at our Sydney CBD and Liverpool locations, and all of our offices are close to train stations and bus terminals.
For those who are unable to attend our offices, we offer conferences by telephone, Skye and FaceTime anywhere around the world.
If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at email@example.com.
Recent Success Stories
- The Right Lawyer Makes All the Difference: Our Client Receives Intensive Correction Order While His Co-Accused Is Sentenced to Full Time Imprisonment
- No Conviction for Aggravated Break and Enter and Commit Serious Indictable Offence
- Home Invasion Charges Dropped
- Bail Granted for 3 x Aggravated Break, Enter and Commit Serious Indictable Offence
- Suspended Sentence for Aggravated Break, Enter and Commit a Serious Indictable Offence in Company
- Bail for client who was advised he had no chance
- No Conviction for Aggravated Break and Enter with Intent
- Aggravated Break and Enter Charges Dropped
- Suspended Sentences for Multiple Break, Enter and Steals