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Break and
Enter Offences

The common understanding of property invasion offences is that there is forced entry to a building. However, that is not always the case; for some offences entry through an open door is sufficient, while for others there is no need for unlawful entry, only that the departure from the building is forced. There are numerous offences that deal specifically with the various situations. Each of these are set out in detail below. 

Each of the offences described on this page (except the last) have three basic forms:
 

  • Basic 

  • Aggravated 

  • Specially aggravated
     

An offence is a basic offence when each of its essential elements are present but the accused has not done anything extra to increase the seriousness of the offence. Aggravated simply means more serious. An offence will be aggravated where there is one or more factors present in the offending which add to the basic offence and make it more serious. A specially aggravated offence is the most serious form of an offence and only arises where the offender has engaged in matters of the utmost seriousness during the commission of an offence.

 

Set out below are the various factors that give rise to aggravated and specially aggravated offences:

 

Circumstances of aggravation
 

  • The offender was armed with an offensive weapon or instrument

  • The offender was in company with one or more other people

  • The offender used violence toward any person during the offence

  • The offender intentionally or recklessly inflicted actual bodily harm on any person

  • The victim was deprived of his or her liberty

  • There were persons present in the building during the offence

     

Circumstances of special aggravation
 

  • The offender intentionally wounded or intentionally inflicted grievous bodily harm on any person

  • The offender inflicted grievous bodily harm on any person and was reckless as to causing actual bodily harm

  • The offender was armed with a dangerous weapon (usually a firearm)

ENTER DWELLING
WITH INTENT

This offence does not require an act of forced entry or ‘breaking.’ In order to be guilty of the basic offence the prosecution must only prove the following:
 

  • That you entered a dwelling house

  • That upon entry you intended to commit an indictable offence


This is what is known as a threshold offence. This means provided you have the necessary intent, the offence is complete at the time that you cross the threshold; that is with your first step inside the dwelling. Because it does not require forced entry, or any criminal act inside the property it is the least serious of the offences that fall within this category.

The basic offence is usually dealt with in the Local Court. However, where circumstances of aggravation or special aggravation are present, the offence can be very seriously and must be dealt with in the District Court. In that jurisdiction substantial gaol terms are usually imposed.

Maximum penalty for basic offence: 10 years
Maximum penalty for aggravated offence: 14 years
Maximum penalty for specially aggravated offence: 20 years

BREAKING OUT
OF A DWELLING

This is a strictly indictable offence and must be dealt with in the District Court. Unlike most offences in this category, it does not require an act of trespass nor does it require forced entry. Rather the offence is targetted at the means of departure following criminal conduct. In order to be guilty of this offence the prosecution must prove the following:
 

  • That you entered a dwelling with intent to commit a serious indictable offence; or

  • While inside a dwelling you did in fact commit a serious indictable offence

  • And in either case you then broke out of the dwelling
     

The act of ‘breaking out’ requires only that a closed door or window be opened. There is no need for the exit point to be forced or damaged in the process of departure. If the window or door was even slightly open, you cannot be guilty of this offence as further opening a partially opened exit point is not a ‘break.’ There are many ways that this kind of charge can be defended, and it is highly recommended that you seek legal advice at an early stage.

If you plead guilty or are found guilty, the severity of the sentence will depend on many things including whether any circumstances of aggravation or special aggravation were present. Where present, it will ordinarily be the case that a term of imprisonment would be imposed. If not, a skilled defence lawyer may be able to convince the Court to impose a sentence other than imprisonment. Much will depend on your personal circumstances and whether you have a criminal record.
 

Maximum penalty for basic offence: 14 years
Maximum penalty for aggravated offence: 20 years
Maximum penalty for specially aggravated offence: 25 years

BREAK AND ENTER
WITH INTENT

This offence can be committed upon entry to a home, a commercial premises or any other building. In order to prove the offence the prosecution must establish the following factors:
 

  • That you broke into a building

  • That you entered the building

  • That you had no lawful right to enter the building

  • That at the time you entered the building you intended to commit
    a serious indictable offence


This is known as a ‘threshold offence.’ This means provided you have the intent to commit a serious indictable offence, the offence is complete when you put your first foot or hand inside the building. A serious indictable offence is any offence that is punishable by 5 years or more in gaol and includes things such as stealing, serious assaults and kidnapping.

The act of ‘breaking’ requires only that a closed door or window be opened. There is no need for the entry point to be forced or damaged in the process. If the window or door was even slightly open, you cannot be guilty of this offence as further opening a partially opened entry point is not a ‘break.’ There are many ways that this kind of charge can be defended, and it is highly recommended that you seek legal advice at an early stage.

If you plead guilty or are found guilty, the severity of the sentence will depend on many things including whether any circumstances of aggravation or special aggravation were present. Where present, it will ordinarily be the case that a gaol term would be imposed. If not, a skilled defence lawyer may be able to convince the Court to impose a sentence other than imprisonment. Much will depend on your personal circumstances and whether you have a criminal record.

Maximum penalty for basic offence: 10 years
Maximum penalty for aggravated offence: 14 years
Maximum penalty for specially aggravated offence: 20 years

BREAK, ENTER AND COMMIT
SERIOUS INDICTABLE OFFENCE

This is the offence which is commonly known as ‘break and enter.’ It is the most commonly charged offence within this category. In its basic form it is usually dealt with in the Local Court. Where circumstances of aggravation or special aggravation are present it is treated seriously and can only be dealt with in the District Court. In order to prove the offence the prosecution must establish the following:
 

  • That you broke into a building

  • That you had not lawful right to enter the building

  • That once inside the building you committed a 'serious indictable offence'


A serious indictable offence is any offence that is punishable by 5 years or more in gaol and includes things such as stealing, serious assaults and kidnapping.

The act of ‘breaking’ requires only that a closed door or window be opened. There is no need for the entry point to be forced or damaged in the process. If the window or door was even slightly open, you cannot be guilty of this offence as further opening a partially opened entry point is not a ‘break.’

Even when this offence is dealt with in the Local Court it is common for gaol terms to be imposed. In the District Court gaol sentences of several years or more are common. There are many ways that this kind of charge can be defended, and it is highly recommended that you seek legal advice at an early stage.

Maximum penalty for basic offence: 14 years
Maximum penalty for aggravated offence: 20 years
Maximum penalty for specially aggravated offence: 25 years

BREAK, ENTER AND ASSAULT WITH INTENT TO MURDER / INFLICT GBH

This offence is extremely serious and must be dealt with in the District Court. If you plead guilty or are found guilty, a heavy gaol sentence is certain. The prosecution can seek to prove it in two ways; firstly by proving that when breaking into a building you had the intent to murder. Secondly, by proving that after breaking in you inflicted grievous bodily harm on any person. Grievous bodily harm simply means ‘really serious injury.’

If you are charged with this offence you should immediately contact an experienced defence lawyer for advice.

Maximum penalty: 25 years imprisonment

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