Break and enter is a serious criminal offence under New South Wales law, involving the unlawful entry into a dwelling-house or other building with the intent to commit a further criminal act, typically a serious indictable offence. These offences are governed primarily by section 112 of the Crimes Act 1900 (NSW) and carry significant penalties depending on the nature and circumstances of the conduct involved.

NSW is known for its tough sentencing approach to break and enter offences. According to a 2015 report by the Judicial Commission of NSW, the state has higher full-time imprisonment rates for break and enter (burglary) than comparable jurisdictions, including Victoria and Queensland. It also imposes longer median sentences for such offences than other Australian states, placing it among the most punitive jurisdictions in this area of law.

This guide outlines the key elements of break and enter offences in NSW, how they’re categorised, and the factors courts consider during sentencing.

‍

Legal Definition and Key Elements

Under section 112(1) of the Crimes Act 1900 (NSW), it is an offence to:

“Break and enter any dwelling-house or other building and commit any serious indictable offence therein.”

To establish this offence, the prosecution must prove that the accused person commits both the unlawful entry and the serious indictable offence inside the premises. In court, the prosecution must also establish all elements of the offence alleged, including the identity and actions of the accused person.

‍

What Constitutes a “Break”?

In legal terms, a “break” does not require forceful or violent entry. It can be as minimal as:

• Opening a closed but unlocked door or window
• Turning a doorknob, lifting a latch, or even sliding a window open

Once the seal of the premises has been broken in this way, and the person crosses the threshold (even partially), the legal threshold for “entry” may be satisfied.

Crucially, the entry must be unlawful. If the accused had lawful authority to enter, either through consent or existing occupancy rights (such as a tenant), then the charge cannot be made out.

‍

Types of Break and Enter Offences

Break and enter offences in NSW vary depending on aggravating factors and the type of offence committed during entry. The main categories include:

A person commits these offences if they unlawfully enter a building and commit, or intend to commit, a serious indictable offence pursuant to the relevant section of the Crimes Act. The law distinguishes between a standard offence, an aggravated offence, and a specially aggravated offence, each carrying different penalties based on the seriousness and circumstances.

‍

What is a Serious Indictable Offence?

A serious indictable offence is any offence under NSW law that carries a maximum penalty of five years or more. Common examples include:

• Theft or stealing
• Assault occasioning actual bodily harm
• Sexual assault
• Intimidation or threats

If a person breaks and enters with the intent to commit, or in the course of committing, one of these offences, the offence under section 112(1) is complete.

In cases where the offence inside the premises is stealing or property damage and the value is under $60,000, it may be treated as a Table 1 offence under the Criminal Procedure Act 1986 (NSW). This allows the case to be dealt with summarily in the Local Court, where the maximum penalty is capped at:

• 2 years’ imprisonment, and/or
• A $11,000 fine

However, in more serious cases or where the offence is not eligible for summary jurisdiction, the matter proceeds to the District Court.

‍

Aggravating and Special Aggravating Circumstances

Some break and enter offences are treated more seriously due to the presence of aggravating circumstances.

‍

Aggravated Break and Enter

Aggravated offences under section 112(2) occur where the offender:

• Is armed with an offensive weapon
• Is in company with others
• Uses corporal violence
• Inflicts actual bodily harm, either intentionally or recklessly
• Deprives someone of their liberty
• Knows someone is present in the building at the time of the offence

These factors elevate the offence to aggravated break and enter, attracting a maximum penalty of 20 years’ imprisonment.

In some limited cases, such as where the offence is limited to property damage or theft under $60,000, the matter may still be dealt with summarily in the Local Court.

‍

Specially Aggravated Break and Enter

This is the most serious category, and applies when:

• The offender intentionally wounds or inflicts grievous bodily harm
• The offender is reckless as to causing actual bodily harm, and grievous harm occurs
• The offender is armed with a dangerous weapon

These circumstances amount to special aggravation, making the offence strictly indictable. The case must proceed to the District Court, and the maximum penalty increases to 25 years’ imprisonment.

‍

Sentencing Considerations

NSW courts apply a guideline judgment when sentencing individuals for break and enter offences. A range of factors are considered, including:

• Whether the offence was planned and professionally executed
• The offender’s criminal history, especially for similar offences
• If the premises targeted housed elderly, disabled, or otherwise vulnerable individuals
• Whether the offence occurred at night, or when the premises were occupied
• The use or threat of force
• The extent of damage, including vandalism
• The value of the property stolen, including both monetary and sentimental value
• Whether there were repeat incursions into the same property

Courts also consider whether the offence caused psychological trauma to victims and the likelihood of rehabilitation for the offender.

‍

Police Investigation and Evidence

NSW Police employ a range of investigative tools to detect and prosecute break and enter offences. Common forms of evidence include:

• CCTV footage
• Fingerprint or DNA evidence
• Eyewitness accounts
• Forensic examination of entry points and tools used

To secure a conviction, the prosecution must establish each element of the offence beyond reasonable doubt. If there is any doubt, the accused must be acquitted. In such cases, technical evidence and legal arguments may be crucial to the outcome.

‍

Multiple Charges and the Importance of Legal Representation

Break and enter charges are often laid alongside other offences such as theft, assault, or property damage. However, not all charges may be proven. In some cases, charges may be withdrawn or replaced with lesser offences during the course of proceedings.

A skilled criminal defence lawyer can:

• Analyse the strength of the prosecution's case
• Challenge the admissibility or reliability of key evidence
• Negotiate to reduce or withdraw charges
• Identify possible legal defences, including lack of intent or lawful authority to enter
• Advocate for non-custodial sentencing options in appropriate cases

Given the serious consequences of conviction, including the likelihood of full-time imprisonment, obtaining expert legal representation is essential.

‍

Need Legal Advice?

If you’ve been charged with a break and enter offence, or believe you may be under investigation, we strongly recommend speaking with a qualified criminal defence lawyer as early as possible.

Our experienced team offers free initial consultations and can provide tailored legal advice based on your circumstances. We are committed to achieving the best possible outcome for every client.

‍