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Possess House Breaking Implements

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

In NSW it is an offence to possess an item that could be used to break into a house without any legitimate reason for possessing the item. It is also an offence to have an item that could be used to break into or drive a car or other vehicle.

A person can be charged with this offence if they have in their possession and item that could be used to break into a house, such as a crow bar or screw driver, and they don’t have a legitimate excuse for carrying it. A legitimate excuse may include having the item for your employment or house renovations.

The maximum penalty for this offence is 7 years imprisonment. In NSW, a court can impose any of the following penalties for this charge:

THE OFFENCE OF POSSESS HOUSE BREAKING IMPLEMENT:

The offence of Possess House Breaking Implement is contained in section 114(1)(b) of the Crimes Act 1900 and states:

Any person who:

  • (b) has in his or her possession, without lawful excuse, any implement of housebreaking or safebreaking, or any implement capable of being used to enter or drive or enter and drive a conveyance,

shall be liable to imprisonment for seven years.

WHAT ACTIONS MIGHT CONSTITUTE POSSESS HOUSE BREAKING IMPLEMENT?

Examples of Possess House Breaking Implement include:

  • Having a crow bar in your car at all times;
  • Keeping a screw driver in your backpack when you don’t need it for work or any other reason;
  • Carrying a door stop and a straightened wire hanger with a hook on the end that could be used to wedge the door of the car open and hook and unlock the button; or
  • Being found to have a signal jamming or code grabbing device in your pocket which can be used to gain entry to keyless entry cars with no good excuse.

WHAT THE POLICE MUST PROVE?

To convict you of Possess House Breaking Implement the prosecution must prove each of the following matters beyond reasonable doubt:

  • That you were in possession of an item;
  • That the item could be used to break into a house or car; and
  • That you had no lawful excuse to have that item.

POSSIBLE DEFENCES FOR POSSESS HOUSE BREAKING IMPLEMENT:

The common ways to defend this charge are:

  • To maintain your innocence if you did not commit the act;
  • To argue that you were not in possession of the item;
  • To argue that the item could not be used to break into a house or car;
  • To argue that you have a lawful excuse for possessing that item, such as your employment or recreational activities; 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 the person who has been charged 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.


Types of 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.


where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

Why Choose Armstrong Legal?

Leading Criminal Law NSW 2017 ISO 9001 Legal Best Practice Accredited Specialists Criminal Law Sydney Business Awards Winner 2011