Break and/or Enter

 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 [1913] 1 KB 125). 

 

THE LAW

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:

  • Break out of a dwelling-house after committing, or enter with intent to commit, an indictable offence (s 109, maximum penalty 14 years)
  • Break and enter and assault with intent to murder (s 110, maximum penalty 25 years)
  • Break, enter and commit a serious indictable offence (s 112, maximum penalty 14 years)
  • Break and enter with intent to commit a serious indictable offence (s 113, maximum penalty 10 years)
  • Enter a dwelling house with intent to commit a serious indictable offence (s 111, maximum penalty 10 years)
  • Being armed with intent to commit an indictable offence (s 114, maximum penalty 7 years), and
  • Being a convicted offender armed with intent to commit an indictable offence (s 115, maximum penalty 10 years).

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,

(b) the alleged offender is in the company of another person or persons,

(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,

(b) the alleged offender inflicts grievous bodily harm on any person and is reckless as to causing actual bodily harm to that or any other person,

(c) the alleged offender is armed with a dangerous weapon.

 

Maximum/Possible Penalties

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:

  • Full time Imprisonment
  • Intensive Corrections Order (ICO)
  • Community Correction Order (CCO)
  • Conditional release Order (CRO) (ie: bond)

 

THE FACTS THAT MUST BE PROVEN

To establish Break and Enter the prosecution must prove each of the following matters beyond reasonable doubt being:

  • That you broke the seal of something; (ie: door, latch etc); and
  • That that by breaking the seal of something you gained access into a house, residence or any type premises (including business); and
  • That you actually entered; and
  • With the intent to commit a serious indictable offence.

If the charge is Enter a Dwelling then no breaking need be proven only that you entered with intent.

 

DEFENCES

Some of the possible defences available can include:

  • To maintain your innocence if you did not commit the act;
  • To argue that you did not break a seal (but the charge of entering may still apply); or
  • To argue that you did not enter the house or premises;
  • To argue that you did not steal anything or that you did not commit a strictly indictable offence; or
  • You had no intent to commit an indicatable offence.
  • If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue- Duress.
  • If your actions were necessary to prevent a greater harm from occurring, you may have the defence of-Necessity.

 

CHOICES AT LAW OPTIONS

For using a carriage service to menace, harass or cause offence, Rep-Revive Criminal & Employment Lawyers® offers the following options:

  1. We initiate negotiation with prosecutors (police) (a term referred to as “plea negotiations”) and plead to withdrawal or downgrade of the charge or alternatively, seek amendments to the police fact sheets or documents.
  2. At the hearing/trial, Rep-Revive Criminal & Employment Lawyers® shall if you so instruct Plead Not Guilty and drive the argument based on prosecution’s inability to prove the elements of their accusation.
  3. Alternatively, Rep-Revive Criminal & Employment Lawyers® may plead guilty on your instructions however, the hearing shall revolve around the facts with an objective to obtain a moderate or minimum punishment.
  4. Lastly, Rep-Revive Criminal & Employment Lawyers® on your instructions enter a plea of guilt where you accept all the charges pressed by the police, but we present a case so solid on your behalf, with an objective to persuade and convince the Court to not record a criminal conviction against you.

For further information on your choices at law click on (CHOICES AT LAW tab on our website)

 

WHY REP-REVIVE CRIMINAL & EMPLOYMENT LAWYERS®

There are several reasons to engage Rep-Revive Criminal & Employment Lawyers®:

  •  We are always in your corner

At Rep-Revive Criminal & Employment Lawyers® we understand the gravity of a criminal charge on your reputation. Thus, we work with the utmost diligence and fervour to restore any dints to our client’s repute. We fight for your rights and liberty earnestly, and for the best results, irrespective of the intensity of the matter. All these factors have made us known in the industry as always being in our client’s corner. 

  •  We bring about excellent results

Rep-Revive Criminal & Employment Lawyers® is driven by positive outcomes and defend your case with skills which have been sharpened by years of experience. You will be dealing with lawyers who are proficient at their craft and will defend your case with rigour and an aim to have the matter withdrawn, downgraded, dismissed or the minimal penalty available at law imposed.

Rep-Revive Criminal & Employment Lawyers® are adept in all forms of advocacy and will present your case in the most skilful manner in Court. 

  • Your case will be in the hands of an experienced lawyer

Irrespective of your decision in deciding the course of the case, you will be supported and guided by Rep-Revive Criminal & Employment Lawyers® who have been in the provision of legal service for over 21 years. 

If you are caught up in this charge our team at Rep-Revive Criminal & Employment Lawyers® are best suited for representing your case.

Please contact our office on 0419 998 398 or 0492 857 721 or email info@rpr5.sydney for more information. The first consultation is free.

 

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