Break and Enter Laws

Break and Enter Laws in NSW

A man armed with a knife forced a bread delivery man to access Allonby Avenue supermarket cash registers to obtain cash prior to forcing the delivery man to withdraw cash from an ATM.

The armed man then took the delivery man into a stolen Suzuki Swift and drove to the Lake Albert road ATM to force the man to withdraw more money. On further investigation, the police found that the Suzuki Swift vehicle was stolen from an Estella Home.

On 17 May 2020, the armed man had also broken into a supermarket in the Rock. He had allegedly carried away $25,000 in cigarettes and alcohol as well as a wheelie bin. Currently the armed man has been refused bail and was due in court on 5 August 2020.

The police have charged the man with the following offences:

  1. Robbery armed with offensive weapon
  2. Aggravated break and enter dwelling etc in company,
  3. Break and enter house,
  4. Detain person with intent to hold ranson
  5. Steal motor vehicle
  6. Take a conveyance without the consent of owner; and
  7. Destroy or damage property.

Although the armed man was charged with multiple offences, this article will only explore the laws relating to the offence of breaking and entering in NSW. There are multiple types of offences relating to Breaking and Entering which will be explored below.

 

Breaking and entering with assault

The offence for breaking and entering is in section 110 of the Crimes Act (hereafter “The Act”):

“[A person] breaks and enters any dwelling-house, or any building appurtenant thereto, and while therein or on premises occupied therewith assaults with intent to murder any person, or inflicts grievous bodily harm upon any person

This offence carries a maximum penalty of 25 years imprisonment.

Key Elements of the offence

For the prosecution to be successfully convict a person with a section 110 charge, they must prove the following elements beyond reasonable doubt:

  1. A person

A “person” in s4 of the Act includes a society, organisation, and company.

 

  1. Breaks and Enters

 

  1. Any dwelling house or building appurtenant, and

A “dwelling house” includes any building where people reside in or can reside in, a boat or vehicle where any person can live in, and any building or other structure which is not necessarily a house, but persons are able to live there. A good example of a “dwelling house” is a shop which includes a back room for the shop owner or other employees to live and sleep in.

A “building” also includes any place of divine worship. An example of this would be a church or a synagogue.

  1. While on the premises

The element requires that the accused be in the premises when committing the crime.

  1. Assaults with intent to murder any person OR

Assaults, in short means when a person touches another person without consent. The elements of assault are further explored here: Peakhurst man assaults police officer, Former NSW police officer allegedly assaulted a woman while in uniform, Assault and Common Assault.

“Intention to murder” does not require the prosecution to show that the person entering actually though about killing a person. Intent to murder can often be inferred from the circumstances of the case.

  1. Inflicts grievous bodily harm

“Grievous Bodily harm” means the killing of a feotus of a pregnant woman where the woman suffers no harm, permanently disfiguring another person and infecting another person with a grievous bodily disease.

  1. On any person

 

Breaking into any house with intention to commit a serious offence

It is an offence to break and enter into a house with an intention to commit a serious offence in section 113 of the Act:

“ (1) A person who breaks and enters any dwelling-house or other building with intent to commit any serious indictable offence therein is guilty of an offence”

.

This offence carries a maximum penalty of 10 years imprisonment. However, it is prudent to note that if aggravating circumstances are present, the maximum penalty increases to 14 years imprisonment, and where special aggravating circumstances are present, the maximum penalty further increases to 20 years imprisonment.

Key Elements

For the prosecution to be successful in proving an offence in s113 of the Act, they must prove the following elements beyond reasonable doubt:

  1. A person
  2. Breaks and enters
  3. Any dwelling- house or other building
  4. With intent to commit any serious indictable offence

The key difference between this offence and the section 110 offence above, is that it merely requires the prosecution to prove that the accused had an intention to commit any serious indictable offence. To reiterate, intention is inferred from the circumstances of the case, and the actual thoughts of the person is not what is considered.

“Any serious indictable offence” means any offence with a penalty of 5 years imprisonment to life imprisonment. Some examples include armed robbery, sexual assault of a child and assault.

 

Breaking into any house and committing a serious indictable offence

It is an offence to break and enter into a house and commit a serious indictable offence as per section 112 of the Act:

“A person who breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building, is guilty of an offence.”

The maximum penalty for this offence is 14 years imprisonment. However, where there are aggravating factors present, the maximum penalty is 20 years imprisonment, and further, where special aggravating circumstances are present, the maximum penalty is 25 years imprisonment.

 

Key Elements

For the prosecution to be successfully prove the offence in section 112 of the Act, they must prove the following elements beyond reasonable doubt:

  1. A person
  2. Breaks and enters
  3. Any dwelling- house or other building OR breaks out of a dwelling house; and
  4. commits any serious indictable offence

The key difference between the offences in section 112 and section 113 is that the accused successfully commits the serious indictable offence. For example, a person is likely to fall under a section 113 charge where the person has broken into a house and had also committed armed robbery in that household.

 

Being armed with intent to commit an indictable offence

It is an offence in NSW to be armed with any weapon and has possession of housebreaking tools & disguise materials whilst breaking and entering as per section 114 of the Act:

“Any person who is armed with any weapon, or instrument, with intent to commit an indictable offence, has in his or her possession, without lawful excuse, any implement of housebreaking or safebreaking, or any implement capable of being used to enter or drive or enter and drive a conveyance, has his or her face blackened or otherwise disguised, or has in his or her possession the means of blacking or otherwise disguising his or her face, with intent to commit an indictable offence, enters or remains in or upon any part of a building or any land occupied or used in connection therewith with intent to commit an indictable offence in or upon the building, is guilty of an offence”

The maximum penalty for this offence is 7 years imprisonment. However, if this offence is committed by a person who was previously convicted of another serious indictable offence, the maximum penalty increases to 10 years imprisonment.

 

Key Elements

For the prosecution to be successful in a charge of being armed with intent to commit an indictable offence, they must prove the following elements beyond reasonable doubt:

  1. A person
  2. Armed with any weapon or instrument

This element requires the prosecution to prove that the accused was holding or having in possession a weapon or instrument. A weapon or instrument can include a firearm, a stick, baseball bat or knife. See this article for more information about armed robbery and possession of a firearm.

 

  1. And has possession of implements of housebreaking or safe breaking OR

This element requires the prosecution to prove that the accused has in their possession items which can be used to break into a house or a safe. A common example may be a crowbar which can be used to open a car or house door without a key.

 

  1. Instruments capable of being used to enter or driver or enter and drive a conveyance; and

Similarly, this element requires the prosecution to prove that the accused had in their possession items which can be used to break into a car or other vehicle, for example a door stop/wooden spoon and a long metal rod. This is as these items may be used to open a vehicle without a key.

 

  1. Has her/her fact blackened or disguised or has means to disguise their face

This element requires the prosecution to prove that the accused had in their possession items which could disguise their face at the time the accused was breaking into the property or vehicle. For example, merely having face paint or a balaclava in a person’s possession whilst breaking and entering is likely to satisfy this element.

 

  1. Breaks and enters
  2. Any dwelling- house or other building OR breaks out of a dwelling house; with
  3. Intent to commit any serious indictable offence

 

Defences

Where the prosecution is unable to prove the above elements beyond reasonable doubt, the accused cannot be found guilty of any of the above offences.

Note that where the prosecution is unable to prove all the key elements in the special aggravating offences, they can opt to downgrade the charge to an aggravating offence or just the base offence (section 115 of the Act).

Nonetheless, it is open to the accused to validly raise some of the following defences:

  • Consent to enter the premises
  • Duress
  • Necessity
  • Self-defence (for assault)
  • Mistaken identity

 

If you have been arrested or the police are looking to interview you regarding an investigation, Pannu Lawyers is able to advise you of your rights at every step of the criminal investigation & trial process. Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales such as Blacktown Local Court, Mt Druitt Local Court, Parramatta Local Court & District Court, Burwood Local Court, Downing Centre Local Court & District Court, and Penrith Local Court. If your matter is at Blacktown Court, we are conveniently located within a walking distance from the Blacktown Local Court. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.

The above information is intended as general information and is not intended to be relied on as legal advice.

 

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