Break and enter – s 112 of the Crimes Act 1900

Section 4 of the Crimes Act 1900 defines this as an offence that is punishable by imprisonment for life or for a term of five years or more. A common offence that accompanies a break and enter is ‘stealing’.

There are 2 types of ‘breaking’:

• Actual breaking, where the security of the building or house is infringed, but there does not need to be an actual breaking of an object.
• Constructive breaking, where entry is obtained by fraud, threats or by use of a key which you are not allowed to use.

It is not a breaking where you believed you had authority to enter the property.

The offence is considered more serious when any of the following accompany a break and enter.

1. the offender is armed with a prohibited weapon, or instrument,
2. the offence was committed in the company of at least one other person with a common purpose,
3. corporal violence is used on a person,
4. the offender intentionally or recklessly inflicts actual bodily harm on another person.
5. the offender deprives a person of their liberty,
6. The offender is aware that people are inside the place where the offence is committed.

The matters in paragraphs (a), (c), (d) and (e) may occur immediately before, at the time of, or immediately after, any of the elements of the offence.

In (f), the defendant is presumed to have known that the premises were occupied, unless the court is satisfied that there existed reasonable grounds for believing there was no one inside.

This is definition is located in section 105A(1) of the Act which defines it as:

1. the alleged offender wounds or maliciously inflicts grievous bodily harm on any person;
2. the alleged offender is armed with a dangerous weapon.

Of the three s 112 offences, being charged under this offence is the most serious.

• The maximum penalty for this offence is imprisonment for 14 years.
• In circumstances of aggravation, the penalty increases to imprisonment for 20 years
• In circumstances of special aggravation, the penalty is imprisonment for 25 years

Please note that these penalties are reserved for the most serious cases only.

This option is recommended only where you accept that:

• you broke and entered a property, and
• you committed a serious indictable offence.

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.

What possible outcomes exist?

• A non-conviction via a section 10 – asking the court for leniency
  • Leniency is where the court has found you guilty, but has exercised a discretion not to convict you. Therefore, you will avoid:
    • a fine or a penalty.
    • a conviction
  • NB: This is outcome is extremely rare.
• Conditional release order “CRO” (with or without conviction)
  • This is usually subject to a period of good behaviour.
  • If an offence is committed during the period of the order, a court may resentence you for the offence committed.
• Community Corrections Orders (“CCO”)
  • An offender is placed under the supervision of Community Corrections.
  • Example of a CCO is performing service within the community, or being required to undertake mental health treatment.
• Intensive Corrections Order (“ICO”)
  • This is where a term of imprisonment can be served in the community.
• Full-time imprisonment
  • Served in a correctional facility.

In passing sentence, the court will take the following matters into consideration from R v Ponfield (1999) 48 NSWLR 327 at [48]–[49]:

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 offender has a prior record particularly for like offences.
4. The offence is committed at premises of the elderly, the sick or the disabled.
5. The offence is accompanied by vandalism and by any other significant damage to property.
6. 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.
7. The offence is committed in a series of repeat incursions into the same premises.
8. The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value.
9. 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.
10. 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)).
11. 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)).

To prove break and enter, the Prosecution must establish beyond a reasonable doubt that:

• you broke and entered a property, and
• you committed a serious indictable offence.

If the Prosecution cannot prove all of the above elements beyond reasonable doubt, then a finding of not guilty should be given.

Defences

• Duress: circumstances or the threats of another compelled you to act in the manner you had. 
• An intention to enter the property did not exist (perhaps due to duress.)
• The property was not entered.
• Necessity:Your actions were necessary to prevent a greater harm from occurring.
• An indictable offence was not committed.
• The property was not sealed.
  • A door or window was open (R v Lackey [1954]). However, where an offender enters a property through an unlocked door or window that was closed, that is a break and enter.
• Consent was given to enter the property.