Break and Enter with Intent to Commit Serious Indictable Offence

In NSW it is an offence to break into a house or premises with the intent of  committing a serious indictable offence. This offence is known as Break and Enter with Intent. 

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.

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 10 years imprisonment.

If the offence is committed in ‘circumstances of aggravation’ the maximum penalty for this offence is 14 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 20 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 with Intent?

The offence of Break and Enter with Intent to Commit Serious Indictable Offence is contained in section 113 of the Crimes Act 1900 (NSW) and states:

(1)  A person who breaks and enters any dwelling-house or other building with intent to commit any serious indictable offence therein is guilty of an offence and liable to imprisonment for 10 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 14 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 20 years.

Examples of Break and Enter with Intent include:

• Climbing onto the balcony of a second story apartment and breaking the flimsy lock on a screen door and attempting to sexually assault the person who was asleep in bed;
• Breaking a padlock on a work site in order to gain entry to the site so that you could steal tools from the site, but you are caught before you take anything; 
• Kicking in a front door to try to steal something inside.

What Must be Proven?

To convict you of Break and Enter with Intent 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 intended to commit a serious indictable offence whilst inside.

For the Aggravated offence, the Prosecution will also need to prove:

• that you were armed with an offensive weapon on instrument; or
• that you were in company with another person/s; or
• that you knew that there was a person in the dwelling house, or
• immediately before or after the offence, you:
  • used corporal violence on a person;
  • intentionally or recklessly inflicted actual bodily harm on a person; or
  • deprived any person of their liberty.

For the Specially Aggravated offence, the Prosecution would also need to prove:

• that immediately before or at the time of or immediately after the offence;
• you wounded, or
• intentionally or recklessly inflicted grievous bodily harm or any person; or
• you were armed with a dangerous weapon. 

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?

When the “serious indictable offence” is stealing or destroying/damaging property, 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.

When the serious indictable offence is something other than stealing or destroying and 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.

The Aggravated offence is strictly indictable, unless the serious indictable offence is stealing or destroying and damaging property and the value of that was less than $60,000 – the matter is then a Table 1 matter. 

The Specially Aggravated offence is Strictly indictable. 

Possible Defences to Break and Enter with Intent

The common ways to defend this charge are:

• To argue that you did not break anything;
• To argue that you did not enter the house or premises;
• To argue that you had no intention to commit a serious indictable offence;
• To raise necessity or duress as the reason for your conduct.

Common Questions about Breaking and Entering with Intent

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 with Intent 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 Break and Enter with Intent 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 is an Aggravated Break and Enter offence. 

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