Break, Enter and Steal (NSW)

In New South Wales it is an offence to break into a house or premises and steal property or commit any other 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.

The Offence of Break, Enter and Steal

The offence of Break, Enter and Steal or Break, Enter and Commit Serious Indictable Offence is contained in section 112 of the Crimes Act 1900 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.

What Actions Might Constitute Break, Enter and Steal?

Examples of Break, Enter and Steal or Break, Enter and Commit 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 the Police Must Prove

For a court to convict a person of this offence, the prosecution must prove each of the following matters beyond a reasonable doubt:

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

Possible Defences for Break, Enter and Steal

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 commit a strictly indictable offence; or
• To raise necessity or duress.

Which Court Will Hear Your Matter?

The offence is a table one offence which means it will be finalised in the Local Court unless the Department of Public Prosecutions or you elects to have the matter finalised in the District Court.

If the matter remains in the Local Court the court can only impose a maximum penalty of two years imprisonment.

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