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This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

Trespass and Break and Enter (NSW)


In New South Wales there is a range of trespass and break and enter offences. There are some relatively trivial offences of this nature as well as serious crimes. Offences relating to trespass are governed by the Inclosed Lands Protection Act 1901 in New South Wales, while break and enter offences are contained in the Crimes Act 1900.

Trespass

If someone comes onto your New South Wales property for a lawful purpose, such as delivering mail or visiting, they are not breaking the law. However, if you ask someone to leave a property where you are the owner or occupier, they must leave. If they do not leave after being told to, they are committing an offence under the Inclosed Lands Protection Act 1901.

Section 4 of the Act makes it an offence to enter inclosed lands without permission. This is punishable by a fine of five penalty units (or 10 penalty units if the land is prescribed premises, such as a school or hospital).

Section 4A of the act imposes harsher penalties for remaining on land after a direction to leave from the owner, occupier or person apparently in control of the land where the offender behaves offensively while remaining on the land. The penalty for this is a fine of 20 penalty units where the land is a prescribed premise and a fine of 10 penalty units in all other cases.

The Inclosed Lands Protection Act stipulates that if civil action is to be taken in relation to a trespass under the act it must be commenced within two months of the commission of the act.

Break and enter offences

Division 4 of the Crimes Act 1900 sets out a number of break and enter offences.

Break and enter with intent to murder

It is a crime punishable by 25 years imprisonment to enter a dwelling house and assault a person with intent to commit murder or inflict grievous bodily harm. This is contained in section 110 of the Crimes Act 1900,

Enter dwelling house with intent

Under section 111 it is an offence to enter a dwelling house with the intention to commit an indictable offence. This is punishable by up to ten years imprisonment.

Enter dwelling house and commit offence

Under section 112 it is an offence to enter a dwelling house and commit a serious indictable offence. This can attract a penalty of up to 14 years imprisonment.

Enter dwelling house with intent

Under section 113 it is an offence to enter a dwelling house with intent to commit a serious indictable offence. This is punishable by up to 14 years imprisonment. Aggravated and specially aggravated versions of this offence also exist, with corresponding harsher penalties.

Break and enter offences and Circumstances of aggravation

Circumstances of aggravation are circumstances under which an offence is alleged to have been committed, which make the offence more serious and increase the maximum penalty that applies. If a person is charged with an offence under a circumstance of aggravation both the offence and the circumstance of aggravation must be proven beyond a reasonable doubt.

Circumstances of aggravation for break and enter offences include:

  • That the offender was in possession of a weapon;
  • That the offender was in company with another person/s;
  • That the offender used violence;
  • That the offender inflicted bodily harm (intentionally or recklessly);
  • That the offender deprived a person of their liberty;
  • That there was one or more person present in the place where the offence is committed and the offender knew there were persons present.

Circumstances of special aggravation include:

  • That the offender intentionally wounded a person;
  • That the offender inflicted grievous bodily harm on a person;
  • That the offender was armed with a dangerous weapon.

These circumstances can exist immediately before, during or after the offence.

Entry does not have to be unlawful

It is worth noting that a person may be guilty of a break and enter offence or an offence of ‘entering with intent’ in New South Wales without having entered as a trespasser. A person can be found guilty even if they originally entered the house or building with the owner’s consent.

If you need legal advice in a criminal matter or in any other legal matter, please contact Armstrong Legal. 

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