Break and Enter Charges
Clear advice on penalties, defences and what to expect through the Local and District Courts.
Break and enter is created by section 112 of the Crimes Act 1900 (NSW) and is committed where a person breaks and enters a dwelling-house or other building and, while inside, commits a serious indictable offence — most commonly larceny, but also offences such as ABH or property damage. "Breaking" is interpreted broadly and does not require force in the everyday sense; pushing open an unlocked door, climbing through an already-open window, or using a key without authority can all be enough, provided some barrier to entry was overcome.
The offence carries three tiers of seriousness. The basic offence applies where none of the statutory aggravating factors are present. Circumstances of aggravation — including being armed, using or threatening violence, being in company, causing actual bodily harm, depriving a person of liberty, or knowing a person was in the premises — increase the maximum penalty substantially. Circumstances of special aggravation, involving wounding, grievous bodily harm, or being armed with a dangerous weapon, attract the highest maximum penalty of all.
Because break and enter combines an entry offence with whatever serious indictable offence was committed inside, these matters often involve detailed forensic evidence — fingerprints, DNA, CCTV, and recovered property — alongside disputes about identification and intent. A charge can also fail if the prosecution cannot establish that a "serious indictable offence" (one punishable by 5 years imprisonment or more) was actually committed once inside, rather than the accused simply having entered without permission.
Penalties
What you could be facing
| Penalty | Maximum | Notes |
|---|---|---|
| Break, enter and commit serious indictable offence — basic (s112(1)) | 14 years imprisonment | A Table 1 offence that can be dealt with summarily in the Local Court, where the sentencing power is capped at 2 years imprisonment and/or a fine of 100 penalty units, unless either party elects for the matter to proceed on indictment. |
| In circumstances of aggravation (s112(2)) | 20 years imprisonment | Applies where, for example, the accused was armed with an offensive weapon or instrument, was in company, used corporal violence, intentionally or recklessly caused actual bodily harm, deprived a person of their liberty, or knew a person was present in the premises. |
| In circumstances of special aggravation (s112(3)) | 25 years imprisonment | Applies where the accused wounded or caused grievous bodily harm to a person, or was armed with a dangerous weapon. Matters at this level are strictly indictable and dealt with in the District Court. |
Possible Defences
Ways this charge can be challenged
Claim of right
Where the accused genuinely believed, even mistakenly, that they had a legal right to enter the premises or deal with the property inside — for example, a dispute between co-owners, tenants or family members over access to a property — this honest claim of right can negate the dishonesty required for the offence.
No serious indictable offence committed
The prosecution must prove not only unlawful entry but that a serious indictable offence — one punishable by imprisonment for 5 years or more, such as larceny of a certain value or an assault causing injury — was actually committed once inside. If that offence cannot be proven, a lesser charge of unlawfully entering premises may be the most that can be established.
Identification
Break and enter offences are frequently detected after the event, relying on CCTV, fingerprint or DNA evidence, or the recovery of stolen property, rather than an offender being caught in the act. Where the evidence connecting the accused to the scene is weak, disputed, or open to an alternative explanation, identification can be a genuine issue at trial.
Duress or necessity
In rare cases, entry may have occurred under an immediate and genuine threat to safety, or to respond to an emergency, such as forcing entry to assist someone in danger. Where the defence of duress or necessity is properly raised, the prosecution must disprove it beyond reasonable doubt.
What Happens Next
The Local Court process
- 01
Following a report or the discovery of stolen property, police investigate using forensic evidence, CCTV and witness accounts before charging a person by arrest or a court attendance notice.
- 02
At the first mention in the Local Court, a plea of guilty or not guilty is entered, and a decision is made as to whether the matter will remain in the Local Court or, particularly for aggravated or specially aggravated charges, proceed towards the District Court.
- 03
Where dealt with summarily, a not guilty plea leads to service of the prosecution brief and a defended hearing before a Magistrate.
- 04
Where the matter is strictly indictable, or the prosecution elects for trial, it proceeds through committal in the Local Court before arraignment and either a jury trial or a sentencing hearing in the District Court.
- 05
At any hearing or trial, the prosecution must prove the unlawful entry, the serious indictable offence committed inside, and any circumstances of aggravation relied upon, beyond reasonable doubt.
- 06
On a finding of guilt or a guilty plea, sentencing follows, with the court weighing the value of any property involved, any injury or violence, the accused’s role and record, and personal circumstances before fixing the penalty.
Frequently Asked Questions
Common questions
No. The law treats even minimal force — pushing open an already-ajar door, climbing through an unlocked window, or using a key you were not authorised to use — as sufficient "breaking" for the purposes of the offence, provided some barrier to entry was overcome without permission.
It is any offence punishable by imprisonment for 5 years or more, most commonly larceny above a certain value, but potentially including assault causing injury or property damage offences committed once inside. If the prosecution cannot prove that a qualifying offence was actually committed, the more serious break and enter charge may not be sustainable.
Knowing that a person was present in the premises at the time is one of the specific circumstances of aggravation under section 112(2), which raises the maximum penalty from 14 to 20 years. Whether this applies depends on what the accused actually knew or believed at the time of entry.
Yes, provided some serious indictable offence — which need not involve theft — was committed once inside, such as an assault or malicious damage. Where nothing was taken and no other qualifying offence occurred, the appropriate charge may instead be entering premises with intent, which carries a different maximum penalty.
Basic break and enter charges can usually be dealt with in the Local Court unless either party elects otherwise, but aggravated and specially aggravated charges are strictly indictable and must proceed to the District Court following committal, which involves a longer and more complex court process.
Being found with recently stolen property can support an inference of involvement in a break and enter, but it is not conclusive proof on its own — the prosecution still needs to establish, usually through additional evidence, that the accused was the person who broke in and committed the offence inside.
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