Criminal Lawyers SydneyUnderstanding Break and Enter Offences

February 11, 20220
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Break and Enter

It is an offence to Break and Enter a dwelling or other building and Commit a Serious Indictable Offence. It is also an offence to Break and Enter with the Intent to Commit a Serious Indictable Offence.

What is a serious indictable offence? If an offence has a potential maximum sentence of 5 years imprisonment attached to it, it is classified as a serious indictable offence.

Break, Enter and Steal

The most common serious indictable offence which goes with break and enter is stealing property. Most people are familiar with the notion of “Break, Enter and Steal” being a criminal offence.

Break and Enter and Commit Serious Indictable Offence

But several other offences committed once inside a building also make out the offence under sections 112 of the Crimes Act, 1900 (NSW), e.g. if there is a break and enter and an assault on someone, this will probably constitute an offence under section 112, although if it is a “common assault”, it will not.

Break and Enter with Intent to Commit Serious Indictable Offence

Even if there is an intention to, e.g. steal something, or assault someone, without actually committing that act, a break and enter with the intention to steal or assault someone inside can also be an offence – under section 113 of the Crimes Act, 1900 (NSW).

There are various other break and enter related offences, such as the more serious Break, Enter and Assault with Intent to Murder (section 110), as well as the related idea of being inside a dwelling and committing a serious indictable offence or entering a dwelling with such intention, and then breaking out of the dwelling (section 109).

If you have been charged with a break and enter offence, you should consult a criminal lawyer experienced in break and enter law, before your first Court appearance. Call us on (02) 9533 2269.

Break Doesn’t Necessarily Mean Using Any Force

When a person actually breaks something e.g. a door lock, or a window, and enters the premises, then this clearly constitutes the “break” element of these offences. However, simply opening a closed door is sufficient.

If, however, one enters via an open door, then there is no “break”. This doesn’t mean that no offence has been committed. It just means that a break and enter offence is not made out. In such a case, Police will probably charge with the offence of Entering a Dwelling with Intent (section 111, Crimes Act), Steal in a Dwelling House (section 148, Crimes Act), or with whichever type of offence Police believe was committed inside the building.

Local Court or District Court?

Some of what the law considers to be “less serious” Break and Enter offences are heard in the Local Court, where the maximum term of imprisonment that can be imposed is 2 years. But many must be heard in the District Court, where the Court has the power to impose up to the maximum terms of imprisonment set out in the relevant sections of the Crimes Act.

Understanding the offence committed is important, and a criminal lawyer in Sydney with experience in break and enter cases can help with this. Call Criminal Lawyers Sydney and Suburbs on (02) 9533 2269.

Can the Prosecution Prove It?

For the Local or District Court to find you guilty of a break and enter offence, the elements that the Prosector (or Director of Public Prosecutions – “DPP”) must prove beyond reasonable doubt are:

– That there was some from of “break” in order to gain access to the premises,
– That after breaking, you did enter into the premises, and
– That you committed, or intended to commit a serious indictable offence.

Possible Penalties for Break and Enter Offences

A term of imprisonment is considered a last resort penalty, but that said, break and enter offences carry maximum penalties of between 10 and 14 years imprisonment (sections 113 and 112). Other offences referred to above, as well as aggravated versions of the 2 most common break and enter offences, carry maximum terms of imprisonment of anywhere between 7 and 25 years.

As you can see, Break and Enter and related offences are very serious offences. It is not recommended that you attend Court after being charged with any offence of this type without first, at the very least, seeking legal advice on your options, and preferably seeking legal representation by an experienced break and enter lawyer.

What are Circumstances of Aggravation?

There are various circumstances where the law considers that an offence of Break and Enter has been committed in circumstances which aggravate (or make worse) the offence. These include being armed with an offensive weapon or instrument, being in the company of another person, inflicting violence on another person, depriving another person of their liberty (e.g. by tying them up, locking them up or otherwise holding them captive), or simply the fact that you knew that there were people inside the house when you entered the premises.

There are 2 levels of aggravation, with circumstances of “special” aggravation being even more serious circumstances, such as inflicting really serious injury on another person, or being armed with specific types of weapons such as firearms. All types of aggravation raise the maximum term of imprisonment by several years.


Sentencing for any crime takes into account many different factors, including factors that are specific to the offender, such as prior criminal record (or lack of it), the specific facts of the actual offence, the offender’s upbringing, social circumstances, and any mental health or physical issues. Against these factors, the Court must balance the need to protect the community from crime, the need to punish offenders, the need to deter others from committing similar offences, and the need to rehabilitate offenders.

Although Break and Enter offences are indeed very serious offences, it is still possible, depending upon a combination of these factors being put in a cohesive way to the Court, to receive a sentence other than full time imprisonment. These alternatives include:


Usually, for any offence, the Court will record a conviction when an individual pleads guilty to, or is found guilty of, any offence. Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) permits a court to find an offence proven, but not record a conviction. A Section 10 result is highly unlikely for a serious offence, but is still theoretically available as a sentencing option.


Under Section 9 of the Crimes (Sentencing Procedure) Act a Court may direct an offender to enter into a “Good Behaviour Bond” for a specified time not exceeding 5 years, as an alternative to imposing a sentence of imprisonment.


Under Section 8 of the Crimes (Sentencing Procedure) Act a Court may make a Community Service Order directing an offender to undertake a specified number of hours of community service work, not exceeding 500 hours.


The operation of a term of imprisonment may be suspended by a Court upon the offender entering into a Good Behaviour Bond under Section 12 of the Crimes (Sentencing Procedure) Act, providing the term of imprisonment is not more than 2 years.


A Court may direct that a term of imprisonment of not more than 18 months duration be served by way of Home Detention.


A Court may direct that a term of imprisonment of not more than 2 years be served by way of Intensive Correction in the community. Home Detention Orders and Intensive Correction Orders generally carry onerous terms, and before these orders are imposed (and after the sentence of imprisonment has been imposed) an offender has to be assessed as suitable.


Legal Aid may be available depending upon your financial circumstances, and a number of other criteria. Contact us to find out – (02) 9533 2269.


In summary, the level of seriousness of an offence will have an impact on the type of sentence to be imposed for any Break and Enter offence – so call Criminal Lawyers Sydney and Suburbs on (02) 9533 2269 before attending Court if you have been charged with an offence of this type

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