If you ‘break the seal’ of something to gain entry to a residential or business premises of another person without the other persons consent, you commit the offence of Break and Enter.
To ‘break the seal’ does not mean you need to break something literally, it merely means that you have unsealed a closed entry. This can occur when you unlatch a gate, turn a door handle of a closed door, slide open an unlocked window etc…
Thus, it is enough to constitute the offence if the security of the house is infringed upon as there is no need for any breaking of any object to occur (see R v Smith (1827) 1 Mood 178).
Also, to ‘break a seal’ may be constructive. Constructive Breaking occurs when entry to a place is obtained by fraud, or threats, or using a key which the person is not entitled to use. The test is whether a person entering the house believed he had no authority to enter (see R v Chandler  1 KB 125).
There are several offences that can constitute a criminal charge upon entering another person’s residence or place of business without their consent. They are:
A serious indictable offence is an offence that is punishable by five (5) years or more in prison. Offences such as stealing, sexual assaults and a range of other non-sexual assaults qualify as serious indictable offences.
Furthermore, circumstances of aggravation can increase the penalties.
For instance, section 112 Break and Enter with the intent to commit a serious indictable offence will increase from 14 years (as stated above) to 20 years if one of the aggravation circumstances described below exists:
"circumstances of aggravation" means circumstances involving any one or more of the following-
(a) the alleged offender is armed with an offensive weapon, or instrument,
(c) the alleged offender uses corporal violence on any person,
(d) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person,
(e) the alleged offender deprives any person of his or her liberty,
(f) the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed.
The penalty can increase even more so to 25 years if circumstances of ‘special’ aggravation exist as defined below:
"circumstances of special aggravation" means circumstances involving any or all of the following--
(a) the alleged offender intentionally wounds or intentionally inflicts grievous bodily harm on any person,
Break and Enter can be punished with a prison sentence of up to 2 years (if heard in the Local Court) or up to 14 years (If heard in the District Court).
If it is an “Aggravated offence” the maximum period imprisonment increases up to 20 years and commonly will proceed to the District Court for trial.
If it is a “Specially aggravated offence” the maximum imprisonment is up to 25 years.
Please note these penalties are reserved for the worst cases of offending.
In NSW, a court can impose any of the following penalties for a Break and/or Enter charge of:
To establish Break and Enter the prosecution must prove each of the following matters beyond reasonable doubt being:
If the charge is Enter a Dwelling then no breaking need be proven only that you entered with intent.
Some of the possible defences available can include:
For using a carriage service to menace, harass or cause offence, Rep-Revive Criminal & Employment Lawyers® offers the following options:
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