There are a variety of break and enter offences in the Crimes Act. The most typical form of break and enter is a break into a commercial or private residence in order to steal property.
The penalties can be harsher if you committed the offence in circumstances of aggravation. New South Wales retains the highest full-time imprisonment rate for break and enter/burglary offences (77%), across Australia when the offence is dealt with on indictment in a middle tier jurisdictionAggravating circumstances include being armed, being in company, if you hurt somebody during the commission of the offence or if you deprive somebody of their liberty.
Part 4, Div 1, Subdivision 4 Crimes Act 1900 (NSW) (“the Act”) contains a number of break and enter offences. These include:
- break out of a dwelling-house after committing, or enter with intent to commit, an indictable offence (s 109, maximum penalty 14 years
- break, enter and assault with intent to murder (s 110, maximum penalty 25 years)
- enter a dwelling house with intent to commit a serious indictable offence (s 111, maximum penalty 10 years)
- break, enter and commit a serious indictable offence (s 112, maximum penalty 14 years)
- break and enter with intent to commit a serious indictable offence (s 113, maximum penalty 10 years)
- being armed with intent to commit an indictable offence (s 114, maximum penalty 7 years), and
- being a convicted offender armed with intent to commit an indictable offence (s 115, maximum penalty 10 years).
There are aggravated and specially aggravated forms of offences under ss 109, 111, 112 and 113 with corresponding greater maximum penalties.
Circumstances of aggravation, means circumstances involving any one or more of the following:
- You are armed with an offensive weapon, or instrument;
- You are in the company of another person or persons;
- You use corporal violence on any person;
- You intentionally or recklessly inflict actual bodily harm on any person;
- You deprive any person of his or her liberty;
- You know that there is a person, or that there are persons, in the place where the offence is alleged to be committed.
Circumstances of special aggravation, means circumstances involving any one or more of the following:
- You intentionally wound or intentionally inflict grievous bodily harm on any person;
- You inflict grievous bodily harm on any person and are reckless as to causing actual bodily harm to that or any other person,
- You are armed with a dangerous weapon (a firearm, imitation firearm, a prohibited weapon or a spear gun).
What the prosecution must prove
Before you can be found guilty of break and enter the prosecution has to prove:
- That you broke something;
- That by breaking something you gained access into a house, residence or premises;
- The you entered the house, residence or premises; and
- That you either stole something or committed a serious indictable offence.
Break and enter may be actual or constructive. Actual breaking is where the security of the house is infringed though there not need be any breaking of any object see R v Smith (1827) 1 Mood 178.
Constructive breaking occurs when entry is obtained by fraud, or threats, or by the use of a key which the person is not entitled to use. The test is whether a person entering the house believed he had no authority to enter see R v Chandler  1 KB 125
The most serious form of break and enter is where the accused did the act knowing that there were people present and was prepared to use force against them in a robbery-like fashion. This is known as a "home invasion".
Break and enter can be punished with a prison sentence of up to 2 years (if heard in the Local Court) or up to 14 years (if heard in the District Court).
If it is an “aggravated offence” the maximum period imprisonment increases up to 20 years.
If it is a “specially aggravated offence” the maximum imprisonment is up to 25 years.
Do you have a defence
There are defences available depending on the circumstances of each case. Standard defences to consider are:
Some of the possible defences available for those charged with Break and Enter can include:
To maintain your innocence if you did not commit the act;
To argue that you did not break anything;
To argue that what you broke did not allow you to access the house or premises;
To argue that you did not enter the house or premises;
To argue that you did not steal anything or that you did not commit a strictly indictable offence; or
Duress – If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue duress.
Necessity – If your actions were necessary to prevent a greater harm from occurring, you may have the defence of necessity.