Breaking and Entering with Intent

Breaking and Entering With Intent is an offence under section 113 of the Crimes Act 1900 which carries a maximum penalty of 10 years in prison

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You broke into and entered a dwelling house or other building
2. With the intention to commit a serious indictable offence

The Act does not define ‘broke’ however, courts have found that it means to ‘forcibly gain entry’ and can include:

1. Unlocking a door or window
2. Pushing open a closed but unlocked door
3. Opening a closed but unlocked window, and
4. Raising a latch or loosening a fastening to secure entry

The courts have found that it may not include:

1. Walking through an open door, or
2. Further opening a window that is already significantly ajar.

A ‘dwelling house’ includes:

1. Any structure intended for occupation as a dwelling and capable of being so occupied, even if it has never been occupied
2. A vehicle or boat in or on which a person resides, and
3. Any structure that is ancillary to the dwelling

A ‘serious indictable offence’ is one which carries a maximum penalty of at least 5 years in prison which includes stealing (larceny)

The maximum penalty increases to 14 years in prison where the offence is committed in circumstances of aggravation which is where you:

1. Were armed with an offensive weapon or instrument
2. Were with at least one other person
3. Used corporal violence
4. Intentionally or recklessly inflicted actual bodily harm
5. Deprived a person of their liberty, or
6. Knew there was at least one person in the dwelling

‘Offensive weapon or instrument’ means:

1. A dangerous weapon, or
2. Anything made or adapted for offensive purposes, whether or not it is ordinarily used as a weapon or capable of causing harm

The maximum increases to 20 years where you:

1. Intentionally wounded or inflicted grievous bodily harm
2. Inflicted grievous bodily harm and were reckless as to causing actual bodily harm, or
3. Were armed with a dangerous weapon

‘Dangerous weapon’ means:

1. A firearm or imitation firearm
2. A prohibited weapon, or
3. A spear gun

Defences to the charge include:

1. Self-defence
2. Duress
3. Necessity, and
4. Having a claim of right over property which means you genuinely believed you were legally entitled to the property