Break and enter offences fall into two categories
- Break and enter with intent to commit a serious indictable offence; and
- Break and enter and commit a serious indictable offence.
The first category carries a maximum penalty of 10 years imprisonment. The second category carries a maximum penalty of 14 years.
What constitutes breaking & entering?
In NSW, a break and enter involves two actions. The first is the act of breaking a seal and the second is entering a location.
A break does not take its ordinary English meaning, nothing has to be broken. The act of opening a door or window under law constitutes a break even if the door or window is not locked.
A break might also include where you have used false pretenses to gain consent to enter a property. This is known as a constructive break. An example of this is where a person pretends to be someone they are not and this act causes someone to open a door and let them in.
The second action is much simpler and does take on its ordinary English meaning and that is to enter the location. The act of walking through the door or climbing through the window constitutes entering.
There is no offence for simply breaking into and entering a location. There is a requirement that an offence is committed after the break and enter (usually a larceny) or that the break and enter was committed with the intent of committing and offence.
What the police must prove
To be found guilty of an offence involving breaking and entering the police must prove the following:
- That a break took place
- That there was an entry into the location
- That subsequent to this entry an indictable offence was committed (e.g. stealing); or
- That the break and enter was done with the intent to commit an indictable (serious) offence
Possible defences for breaking & entering
It is always a defence where you believe that an essential element of an offence can not be proved by the prosecution. Some specific defences to this type of offence include:
No Break took place
In circumstances where you are charged with an offence of breaking and entering, it must be proved beyond reasonable doubt that an actual break took place. Walking through an open door will not satisfy this element. Further entering with consent that was not gained under false pretences will not constitute a break.
The defence of necessity is a defence that is available to a number of offences. Necessity can be raised when a person commits an offence in circumstances that make committing the offence necessary to avoid serious consequences.
For the defence of necessity it must be found that the person committed the criminal offence:
- In order to to avoid certain consequences which would have caused ‘irreparable evil’ to themself or another.
- The accused honestly and reasonably believed that they were in a situation of imminent peril and it was necessary for him or her to commit the acts that constituted the offence, and
- The acts to avoid the peril must not have been disproportionate to the threat of danger.
The accused must raise the defence of necessity but once it is raised the prosecution must disprove the defence beyond a reasonable doubt.
It is a defence to many offences where the offending conduct was done due to Duress. Duress is where an offender is placed in a situation where they have no choice other than to commit an offence due to serious threats to either them or their family.
The defence of duress involves 3 critical elements. A person will not be held criminally responsible for an offence if the offence was committed:
- Because of threats of death or really serious injury to him or herself or to their family, and
- Those threats being of such a nature that a person:
- Of ordinary firmness and strength of will
- Of the same maturity and sex of the accused, and
- In the accused’s position,
- Would have given in to the threats and committed the offence
When looking at the first element, the question is whether a threat was made, and if so, what led the accused to believe the threat would be carried out. These threats may be made expressly or impliedly. It does not matter if there is no real threat to the person or family. What matters is whether the person held a genuine belief that there is an imminent threat of death or serious injury to his or her self or family if he or she did not do what was demanded of them.
The second element is an assessment of the circumstances surrounding the threats. When considering this element the court will have regard to, among others, the nature of the threat, the person making the threat, the accused’s knowledge of the person making the threat and all circumstances which may affect a reasonable person’s reaction to the threats.
Essentially the test for this second element is if you place an ordinary and reasonable person of the same maturity and sex of the accused in the exact same set of circumstances posed to the accused, would that reasonable person succumb to those threats and commit the offence.
When assessing the third element, the question is whether there are any other alternatives other than committing the offence. A person will not be able to raise the defence of duress even if they held a reasonable belief that the threats would be carried out if he or she could have avoided the threats by alternative means other than committing the offence.
If the prosecution disproves any of the three elements listed above then that the defence will not be made out. If they are unable to disprove any of the elements then offender should be found not guilty.
Penalties for breaking & entering in NSW
The court can consider all of the following options for a break and enter offence:
Conditional Release Order
Conditional Release Orders (CRO) are often used to deal with first time offenders and less serious offences where the offender is unlikely to present a risk to the community.
A CRO is an order of the court that you are to be of good behaviour (not commit any other offences) for a specific period of time.
CROs can include conditions such as drug and alcohol abstention, requirements to attend programs, non-association requirements or place restrictions where appropriate. CROs can also have a supervision condition. Courts have discretion to not impose a conviction on a CRO, if they consider it appropriate. CROs can be for a maximum period of 2 years.
The CRO acts as a warning and provides the option to divert less serious offenders out of the criminal justice system, freeing up resources to deal with the offenders who cause the greatest concern to the community. If an offender commits any further offences while on a CRO, subsequent penalties may be more severe.
Community Corrections Order
Community Correction Order’s (CCO) are used to punish offenders for offences that do not warrant imprisonment or an Intensive Corrections Order, but are too serious to be dealt with by a fine or lower level penalty.
CCOs are a flexible sentence that the court can tailor to reflect the nature of the offender and the offence. The court can select from the range of conditions, such as supervision by Community Corrections Officers, community service work (up to 500 hours) and curfews, to hold offenders to account and reduce their risk of reoffending. CCOs can be imposed for a period of up to three years.
Intensive Corrections Order
An Intensive Corrections Order (ICO) is a custodial sentence that the court decides can be served in the community. Community safety is the court’s paramount consideration when making this decision. ICO’s can be for a maximum of 2 years for single offences and up to 3 years where there are multiple offences.
Supervision is a mandatory condition of an ICO. Further the Courts must impose at least one additional condition. Conditions that can be included in an ICO are: home detention, electronic monitoring, curfews, community service work (up to 750 hours), alcohol/drug bans, place restrictions, or non-association requirements. Offenders may also be required to participate in programs that target the causes of their behaviour.
The ICO is the most serious sentence that an offender can serve in the community. ICOs are not be available for offenders who have been convicted of murder, manslaughter, sexual assault, any sexual offence against a child, offences involving discharge of a firearm, terrorism offences, breaches of serious crime prevention orders, or breaches of public safety orders.
A person convicted of a domestic violence offence can only be sentenced to an ICO if the court is satisfied that the victim or likely co-residents can be adequately protected. For example, a domestic violence offender is not eligible for an ICO with a home detention condition if they are intending to reside with the victim.
Full Time imprisonment
Full Time imprisonment is the most serious penalty a court can impose. The sentence involves a period of time that will be spent inside an NSW correctional centre. When imposing a full time custodial sentence in most circumstances the court will apply a Non-Parole period, this is the minimum time that must be spent in a correctional centre. After the expiration of the Non-Parole period you will be eligible for release with the remainder of the sentence to be spent in the community on parole.
Book a Free Consultation for a break & enter charge.
Break and Enter offences are serious! They can be complex and often, if proved, will result in a term of imprisonment. It is important to get the advice of a good criminal lawyer as early as possible! At First Offence Legal we have successfully defended clients charged with Break and Enter offences in many different circumstances.
If you or anyone you know has been charged with a break and enter offence contact First Offence Legal and book your free consultation today! Remember you can always make first offence legal your first defence.