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.
Your Options in Court
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.
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.
What does the prosecution need 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.
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 penalties could I face?
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.
Why Sydney Criminal Lawyers®?
Your freedom is your most valuable asset – so why take a gamble with it?
At Sydney Criminal Lawyers®, we fight hard to ensure our clients get the best possible result in every break and enter case. With years of experience fighting and winning break and enter cases, you can rest assured that your future is in safe hands.
In each case, we dedicate the time and effort to find problems with the prosecution case. By doing so, we frequently get charges dropped at an early stage – saving our clients the time and expense of going to court.
We also have a high success rate of getting our clients ‘section 10’s’ –where the charges are dismissed without the incident impacting your criminal record. This allows you to continue living your life without the matter impacting your work or travel plans.
No matter how complex or serious your break and enter matter is, our expert lawyers possess the skills and knowledge to give you the best advantage. So trust in our experience and give us a call today on (02) 9261 8881 to arrange your first FREE conference.