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. This offence is known as “Break, Enter and Steal” or “Break, Enter and Commit 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

To convict you of Break, Enter and Steal or Break, Enter and Commit 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.

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 steal anything or that you did not commit a strictly indictable offence; or
• To raise necessity or duress as the reason for your conduct.

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.

Penalties

Jail: This is the most serious penalty and involves full time detention in a correctional facility. Read more.

Home Detention: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.

Intensive Corrections Order (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Suspended Sentence: As a result of amended legislation this penalty was repealed on 24 September 2018. This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Community Service Order (CSO): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Good Behaviour Bond: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.

Community Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.

Fines: When deciding the amount of a fine the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10A: A section 10A is a conviction, with no other penalty attached to it. Read more.

Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. Read more.

Section 10 avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.

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