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    Break And Enter

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      Our specialist break and enter lawyers have significant experience in fighting these charges. Our strategic approach has seen countless clients found ‘not guilty’ as well as many avoid jail sentences when they plead guilty.

      Contact us now to speak to our accredited specialist criminal lawyer who can immediately advise you of any defences that may be open to you.



        What is Break and Enter?

        Section 112(1) of the Crimes Act 1900 (NSW) sets out an offence for breaking and entering a premise belonging to another person without their consent, with the intent to commit a ‘serious indictable offence’.

        If the ‘serious indictable offence’ was stealing and the value of what was stolen was equal to or less than $60,000, then Break and enter is a Table 1 offence under the Criminal Procedure Act 1986 (NSW). As such, it is finalised in the Local Court unless you or the prosecution elects to deal with it in the District Court.

        If the value of what was stolen is greater than $60,000, then it is a strictly indictable offence. In this case, it must be finalised in the District Court.


        How Do You Beat an Aggravated Break and Enter Charge?

        You can fight a Break and enter charge in two ways. Firstly, the prosecution must prove each of the following beyond reasonable doubt:

        1. You committed a ‘break’; and
        2. You then ‘entered’ the house or building; and
        3. After you entered, you committed a serious indictable offence.


        If any of these elements are not made out, then you can be found ‘not guilty’.

        Secondly, you can rely on one of the defences.


        What is a ‘Break’?

        For break and enter charges, the prosecution does not have to establish that an actual breaking of an item (eg. a window or door) occurred. Opening a door that was closed but not locked can be considered a break. There may also be a ‘constructive break’ where you gain entry by tricking someone into opening a door or threatening them.


        What is a ‘Serious Indictable Offence’?

        A serious indictable offence is any offence with a maximum penalty of five years imprisonment or more. The most common offence attached to break and enter charges is stealing (also known as ‘larceny’).


        What are the Defences to Break and Enter?

        The following defences to break and enter charges can be used:

        1. If a door or window was partially opened already, you will not have committed a break
        2. Claim of right: If you are charged with ‘break, enter and steal’, you may have a defence if you held a genuine belief that the property taken was yours.
        3. If the prosecution cannot prove that a ‘serious indictable offence’ was committed. An example may be if the ‘serious indictable offence’ is alleged to be Assault occasioning actual bodily harm, but the prosecution can only prove Common Assault.
        4. The prosecution cannot prove that you entered the house or building.
        5. Honest and reasonable mistake: You held a genuine belief that you were entitled to enter the house or building, and that belief was reasonable in the circumstances.
        6. Duress: You were forced to commit the offence
        7. Necessity: You needed to commit the offence


        Our team have years of experience in these cases. Contact us now to speak our specialist Break and Enter lawyers. We can quickly assess whether you have any defences open to you and how to begin preparing for Court.


        Before pleading guilty, you should obtain advice from an experienced criminal lawyer for break and enter charges. The reason for this is that once you have entered a plea of ‘guilty’, it becomes very difficult to change your plea to ‘not guilty’.

        We can examine the evidence against you and may find a defence which you had not thought of. Alternatively, we could downgrade your charge to a less serious charge, such as Enter Dwelling House with Intent.

        If you have taken advice, you will then need to prepare for sentencing. You can refer to our general guide. However, you will need to speak to a specialist break and enter solicitor for representation in Court and advice specific to your case.


        What is the Penalty for Break and Enter?

        The maximum penalty for Break, Enter and Commit serious indictable offence is 14 years imprisonment.


        What is the Guideline Judgement for Break and Enter?

        A ‘guideline judgement’ involves the Court setting out what factors should be taken into account when sentencing an offender. It also prescribes the type of sentences that should (and should not) be imposed for certain offences.

        The Guideline Judgement for Break and Enter offences (R v Ponfield (1999) 48 NSWLR 327) set out that the court should regard the seriousness of break and enter offences as enhanced and reflect that enhanced seriousness by imposing heftier sentences if one or more of the following factors are present:

        1. The offence is committed whilst the offender is at conditional liberty on bail or on parole.
        2. The offence is the result of professional planning, organisation and execution.
        3. The offence is committed at premises of the elderly, the sick or the disabled.
        4. The offence is accompanied by vandalism and by any other significant damage to property.
        5. The multiplicity of offences (reflected either in the charges or matters taken into account on a Form 1 pursuant to s 21 of the Criminal Procedure Act 1986). In sentencing on multiple counts regard must be had to the criminality involved in each: Pearce v The Queen (1998) 72 ALJR 1416.
        6. The offence is committed in a series of repeat incursions into the same premises.
        7. The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value.
        8. The offence was committed at a time when, absent specific knowledge on the part of the offender (a defined circumstance of aggravation — Crimes Act s 105A(1)(f)), it was likely that the premises would be occupied, particularly at night.
        9. That actual trauma was suffered by the victim (other than as a result of corporal violence, infliction of actual bodily harm or deprivation of liberty — defined circumstances of aggravation: Crimes Act s 105A(1)(c), (d) and (e)).
        10. That force was used or threatened (other than by means of an offensive weapon, or instrument — a defined circumstance of aggravation Crimes Act s 105A(1)(a)).

        What Are the Possible Sentences for Breaking and Entering?

        The list below sets out the sentencing options for Break and Enter charges:

        1. Section 10 dismissal
        2. Conditional release order without conviction (previously known as Section 10 good behaviour bond)
        3. Fine
        4. Conditional release order with conviction (previously known as Section 9 good behaviour bond)
        5. Community Corrections Order (previously known as Community Service Order)
        6. Intensive Corrections Order
        7. Home Detention Order (no longer used in NSW)
        8. Full Time Imprisonment

        Will You Go to Jail for Break and Enter?

        Statistics reveal that in the last 5 years, no person has avoided a criminal conviction this offence in the District Court. Over 95% of people were sentenced to some form of imprisonment. Over 85% of offenders received a sentence of full-time imprisonment.

        Avoiding a gaol sentence is difficult to achieve. As such, you should speak to one of our specialist criminal defence solicitors for break and enter charges.


      Can a Break and Enter charge be downgraded?

      Yes, you can offer to plead guilty to a lesser offence such as ‘Enter Enclosed Lands’ (which does not carry any jail time) or Enter Dwelling House with Intent. If this is accepted by the prosecution, the Break and Enter charge will be withdrawn.

      Contact us today to discuss how we can begin the process of writing representations to Police or the DPP and have the charge downgraded.


      Can You Be Guilty of Breaking and Entering If You Have a Key?

      Yes, you can be found guilty of breaking and entering if you were not entitled to have the key or you were not entitled to use the key at the relevant time. If you obtained the key by accident or trickery, then you can be found to have committed a constructive break.

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