Break and Enter
What is
Break and Enter?
In New South Wales, break and enter offences—also known as burglary or home invasion offences—involve unlawfully entering a building or property with the intent to commit a serious indictable offence, such as stealing, assaulting someone, or damaging property. These offences are taken very seriously by the courts due to the violation of personal and property security they represent.
Break and enter offences are primarily dealt with under Sections 112–114 of the Crimes Act 1900 (NSW):
Section 112(1): Entering a dwelling or building with the intent to commit a serious indictable offence (e.g. theft, assault, damage).
Section 112(2)–(3): Aggravated or specially aggravated forms, involving factors such as being armed, in company, or causing actual bodily harm.
To be found guilty of break and enter, the prosecution must prove:
The accused entered a building or part of it (even partial entry like a hand through a window counts),
The entry was unauthorised or unlawful, and
The accused did so with intent to commit a serious indictable offence, or committed such an offence while inside.
The seriousness of a break and enter offence significantly increases when aggravating factors are present. These include situations where the offender was armed with a weapon, committed the offence in company with others, or was aware that people were inside the premises at the time of the intrusion. Additionally, if the incident involved violence, threats, or caused actual bodily harm, the offence is considered far more severe. These factors elevate the charge to aggravated or specially aggravated break and enter, which carry harsher penalties and reflect the heightened danger posed to victims and the community.
The Penalties of
Break and Enter Offences
The penalties for break and enter offences are severe and vary depending on the circumstances of the offence, particularly whether it was aggravated or specially aggravated. These offences are prosecuted under Sections 112–114 of the Crimes Act 1900 (NSW) and are considered serious indictable offences. The maximum penalties for break and enter offences are:
Section 112(1): Break and Enter to Commit a Serious Indictable Offence
Basic offence (e.g. to steal, assault, or cause damage)
Maximum penalty: 14 years imprisonment
Section 112(2): Aggravated Break and Enter
Involves aggravating factors such as being armed with a weapon, acting in company with others of knowing people were inside at the time
Maximum penalty: 20 years imprisonment
Section 112(3): Specially Aggravated Break and Enter
Involves serious injury, use of dangerous weapons, or intent to inflict grievous bodily harm
Maximum penalty: 25 years imprisonment
In addition to lengthy prison sentences, break and enter offences carry significant legal and personal consequences beyond the courtroom. A conviction results in a criminal record, which can negatively impact future employment opportunities, international travel, and access to housing. Due to the serious nature of the offence, individuals charged with break and enter may also face bail refusal, meaning they could remain in custody while awaiting trial. In cases where the offender is deemed high-risk, there is also the potential for extended supervision orders to be imposed after release, subjecting the individual to ongoing monitoring and restrictions. These consequences highlight the importance of securing experienced legal representation as early as possible.
The Possible
Defence Strategies
Defending a break and enter charge requires a tailored legal strategy based on the specific facts of the case, including how entry occurred, the accused’s intentions, and the evidence available. The prosecution must prove beyond reasonable doubt that the accused entered the premises unlawfully and did so with the intent to commit a serious indictable offence (such as theft, assault, or property damage). If any element is not proven, the charge may fail. The possible defence strategies for break and enter include:
Lack of Intent
The accused may admit entering the property but deny intending to commit an offence inside.
For example, if they entered to retrieve their own belongings or to seek shelter, this may undermine the prosecution’s case.
Lawful Right to Enter
If the accused had permission or a legal right to be on the premises—such as being a tenant, co-owner, or having consent—this could form a valid defence.
Mistaken Identity
In cases involving poor-quality CCTV, unreliable eyewitnesses, or limited forensic evidence, the defence may argue mistaken identity, especially if no clear link is established between the accused and the crime scene.
Duress
If the accused was coerced or threatened into committing the offence by another person, they may raise the defence of duress, showing they acted under serious pressure that overrode their free will.
Mental Health Defence
Argues the accused was suffering from a mental illness at the time of the offence and did not understand the nature or wrongfulness of their actions.
May result in a special verdict of not guilty by reason of mental illness and diversion to a mental health facility.
No “Break” or “Entry”
If the accused never physically entered the premises (or only entered a public space), or if the supposed “break” was accidental or non-criminal in nature (e.g., walking through an open door), then the elements of the offence may not be made out.
Choosing Sydney Defenders to represent you in a break and enter matter ensures you receive the highest level of legal expertise, discretion, and strategic defence. Our firm understands the immense pressure clients face in these circumstances and provide strong, confidential support from the outset. We offer access to an exclusive network of seasoned criminal defence barristers, regularly briefed in complex matters held in both Local and Supreme Court. Our robust legal team conducts meticulous case preparation, critically analyses the prosecution’s evidence, and develops tailored defence strategies designed to maximise the individual’s chances of acquittal or sentence reduction. Sydney Defenders are committed to always providing sound legal advice and preparing a strong defence case to achieve the best possible outcome for the specific situation.