Break and Enter and Commit a Serious Indictable Offence

In NSW it is an offence to break into a house or premises and steal property or commit any other serious indictable offence. This offence is known as “Break, Enter and Steal” or “Break, Enter and Commit a Serious Indictable Offence”. A ‘serious indictable offence’ is any offence that carries more than five years imprisonment, including offences such as larceny, assault occasioning actual bodily harm and sexual assault.

A person can be charged with this offence if they break something like a gate, lock, window or door, enter a house or premises and commit a serious indictable offence such as stealing or seriously assaulting someone.

There are different levels of ‘aggravation’ or seriousness of this offence depending on the conduct engaged in or the offence committed while inside the house or premises.

The maximum penalty for this offence is 14 years imprisonment.

If the offence is committed in ‘circumstances of aggravation’ the maximum penalty for this offence is 20 years imprisonment. ‘Circumstances of aggravation’ include having a weapon, being in the company of another person or knowing that there is someone else inside the house.

If the offence is committed in ‘circumstances of aggravation’ the maximum penalty for this offence is 25 years imprisonment. ‘Circumstances of aggravation’ include wounding or very seriously assaulting someone in the house or being in possession of a dangerous weapon.

What is Break and Enter and Commit a Serious Indictable Offence?

The offence of Break, Enter and Steal or Break, Enter and Commit a Serious Indictable Offence is contained in section 112 of the Crimes Act 1900 (NSW) and states:

(1) A person who:

(a) breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or

(b) being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building,

is guilty of an offence and liable to imprisonment for 14 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.

Examples of Break, Enter and Steal or Break, Enter and Commit a Serious Indictable Offence include:

• Climbing onto the balcony of a second story apartment and breaking the flimsy lock on a screen door before stealing a laptop from the persons study;
• Kicking down the front door of a house and making off with the TV;
• Breaking a padlock on a work site in order to gain entry to the site and steal copper and tools with your friends; or
• Driving your car through a garage door to destroy chemicals and laboratory equipment in a warehouse that tests makeup and other products on live animals.

What Must be Proven?

To convict you of Break, Enter and Steal or Break, Enter and Commit a Serious Indictable Offence the Prosecution must prove each of the following matters beyond reasonable doubt:

• That you broke something;
• That that by breaking something you gained access into a house, residence or premises;
• The that you entered the house, residence or premises; and
• That you either stole something or committed a serious indictable offence.

If the Prosecution does not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear the Matter?

Where this matter will be finalised depends on the precise circumstances and subsection of S112 that you are charged under. 

For offences under S112(1)(a) or s112(1)(b), where the serious indictable offence is stealing or damaging property and the property value is less than $60,000, the offence is a Table 1 offence, which means that it will be dealt with in the Local Court unless the Prosecution or accused elects to have the matter dealt with in the District Court.

For offences under S112(1)(a) or s112(1)(b), where the serious indictable offence is stealing or damaging property and the property value is greater than $60,000, the offence is Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the District Court. The matter will still start in the Local Court and it will be subject to the Early Appropriate Pleas of Guilty (EAGP) Scheme.

For offences under S112(1)(a) or s112(1)(b),  where the serious indictable offence is not stealing or damaging property, the offence is Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the District Court. The matter will still start in the Local Court and it will be subject to the Early Appropriate Pleas of Guilty (EAGP) Scheme.

For offences S112(2) and s112(3) (Aggravated Break and Enter), the offence is usually Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the District Court. The matter will still start in the Local Court and it will be subject to the Early Appropriate Pleas of Guilty (EAGP) Scheme. The only Aggravated Break and Enter offences that are not strictly indictable are those where the circumstance of aggravation is that it is committed in company, and the serious indictable offence is damage to property or stealing, and the value of the property is less than $60,000

Possible Defences to Break, Enter and Commit a Serious Indictable Offence

The common ways to defend this charge are:

• To maintain your innocence if you did not commit the act;
• To argue that you did not break anything;
• To argue that what you broke did not allow you to access the house or premises;
• To argue that you did not enter the house or premises;
• To argue that you did not steal anything or that you did not commit a strictly indictable offence; or
• To raise necessity or duress as the reason for your conduct.

Common Questions

Will I receive a criminal conviction?

A conviction and criminal record for this offence is very likely. 

In NSW, a Court can impose any of the following penalties for a Break and Enter and Commit a Serious Indictable offence charge.

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10 

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for this offence might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover a conviction can completely rule out certain career paths such as teaching and a range of government employment options. These kinds of offences may also result in sentences that include imprisonment even where an individual has no previous convictions.

Will I go to Gaol?

There is a very high risk of a Gaol sentence for break and enter offences, but particularly so when it’s an Aggravated Break and Enter offence. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.