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Break and Enter

Burglary is the offence of entering the dwelling of another person with the intent to commit a crime and is created by section 419(2) of the Criminal Code Act 1899. If the offence is committed via a “break” (commonly called “breaking and entering”) the maximum penalty rises to life imprisonment.

The Offence of Burglary By Break

The term “dwelling” has a wide meaning under the Act and includes a building or part of a building used as a residence:

Dwelling includes any building or structure, or part of a building or structure, which is for the time being kept by the owner or occupier for the residence therein of himself or herself, his or her family, or servants, or any of them, and it is immaterial that it is from time to time uninhabited. A building or structure adjacent to, and occupied with, a dwelling is deemed to be part of the dwelling if there is a communication between such building or structure and the dwelling, either immediate or by means of a covered and enclosed passage leading from the one to the other, but not otherwise.

What is a Break?

A break, for the purpose of subsection (2), refers to any entry to a dwelling that is not achieved by walking through an already open door. A break includes the act of opening an unlocked door and the term defines actions all the way up to forcible entry using tools. A break can also be constituted by the making of threats to gain entry to a dwelling, or by collusion with a person already in the dwelling.

What Actions Might Constitute Burglary By Breaking?

  • Entry to a dwelling that is not achieved by walking through an already open door. For example:
    • Lifting/winding open an unlocked window
    • Forcing an old back door
    • Climbing through the chimney
  • Making threats to gain entry to the dwelling.
  • Colluding with another person already inside the dwelling.

What the Police Must Prove

The police must prove:

  • that you entered a dwelling of another;
  • that you did so with the intent to commit an offence; and
  • that the offence you intended to commit was an indictable offence; and
  • that you entered the building by a break.

The police do not necessarily need to prove exactly which offence you intended to commit in the dwelling in order to convict you of burglary by break, but there must be evidence that you intended to commit some form of indictable offence.

Possible Defences to Burglary By Breaking

A person charged with break and enter may defend the charge by arguing:

  • they did not have the necessary intent to commit an indictable offence;
  • the premises was not a dwelling;
  • they didn’t enter the dwelling;
  • they committed the offence under duress;
  • their entry to the dwelling did not involve any break.

Which Court Will Hear My Matter?

An offence of burglary by break will be heard and determined in the District Court.

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

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