Entering Dwelling House

In New South Wales, it is an offence to Enter a Dwelling House with the intention of committing a serious indictable offence therein. 

It carries a maximum penalty of 10 years imprisonment. 

If the offence is aggravated, the maximum penalty increases to 14 years imprisonment.

If the offence is specially aggravated, the maximum penalty increases to 20 years imprisonment. 

What is Entering Dwelling House?

The offence of Entering a Dwelling House is found in section 111 of the Crimes Act 1900 (NSW) which states:

(1)  Whosoever enters any dwelling-house, with intent to commit a serious indictable offence therein, shall be liable to imprisonment for ten 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.

A “Dwelling House” includes—

• any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied,
• a boat or vehicle in or on which any person resides, and
• any building or other structure within the same curtilage as a dwelling-house, and occupied therewith or whose use is ancillary to the occupation of the dwelling-house.

A “serious indictable offence” is any offence with a maximum penalty of 5 years imprisonment or more.

The following acts could constitute Entering a Dwelling House:

• entering a garage next to a house with intent to steal something from the garage
• seeing that an apartment door has been left open, and going inside, planning on damaging a person’s property in their home;
• going into your neighbours home uninvited with the intention of intimidating them about a dispute you are having.

What Must be Proven?

For a person to be found guilty of Entering a Dwelling House, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• that you entered a dwelling house; and
• you intended to commit a serious indictable offences in that house

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 Entering a Dwelling House

The following defences may be available for a Entering a Dwelling House charge:

• Duress;
• Necessity;
• You had no intent to commit a serious indictable offence;

Common Questions about Entering a Dwelling House

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:

• 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 Entering a Dwelling House might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover a conviction for an offence of violence can completely rule out certain career paths such as teaching and a range of government employment options. Violent offences may also result in sentences that include imprisonment even where an individual has no previous convictions.

Will I go to Gaol?

A significant proportion of people who plead guilty to this offence do go to Gaol – but not all. This is why it is so important to get good advice and representation to help you. 

I didn’t break into the house. Does that matter?

No it does not. This offence does not require you to “break in” – only to enter. 

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