In New South Wales it is an offence to break into a premises and commit any serious indictable offence.

Generally, someone is charged with this offence if they break something like a lock, gate, window or door, enter a house or premises and commit a serious indictable offence such as seriously assaulting someone or stealing.

Being charged with break and enter, robbery or larceny can be an unsettling and distressing experience for yourself and your family.

Break and Enter

Breaking and entering, as the name suggests, involves entering into an enclosed premise without the owner’s permission. The offence of breaking and entering and committing a serious indictable offence carries a maximum penalty of 14 years’ imprisonment.

To convict an individual of breaking, entering and committing an indictable offence, the prosecution must prove the following elements beyond a reasonable doubt:

• The individual broke into and entered private property without the permission of the owner
• The individual committed a serious indictable offence such as larceny

Defences that can be raised when charged with breaking and entering include:

• The individual was coerced into breaking and entering
• The individual committed the offence of breaking and entering to previous serious injury or death to another
• The property’s owner permitted the individual to break and enter

Difference between break and enter and standard trespass

A person is guilty of the offence of Break and Enter if he enters or breaks in the place of another person without the latter’s consent, with intent to commit an offence. On the other hand, standard trespass is solely when a person enters enclosed lands without permission.

Aggravated Break and Enter

Aggravating circumstances are factors that make the offence more serious.

The court can therefore impose a harsher penalty where the prosecution proves that you committed an offence in ‘aggravating circumstances.’

Aggravating circumstances may occur before, during or after the offence. They include situations with and without weapons as well as break and enter with the intention to commit an indictable offence.

Weapons

An ‘offensive weapon or instrument’ includes anything that has the potential to cause harm upon another person. It can include things like syringes, knives, baseball bats, and firearms. However, it can also refer to things that are not generally considered weapons. It will be enough to have had the weapon on you – you don’t have to have used it.

‘Dangerous weapons’ is a ‘circumstance of special aggravation’ and includes things such as firearms and other prohibited weapons.

No Weapons

Aggravating circumstances without weapons include:

• Being in the company of one or more other persons: The prosecution must show that there was at least one other person physically present at the time of the offence and that they shared a common purpose with the accused. The court will consider the effect of the group as a whole in intimidating the victim or committing the act.
• Inflicting corporal violence upon another person: Corporal violence is physical injury done to another person.
• Inflicting actual bodily harm on another person: Actual bodily harm refers to harm that has a lasting impact. Does not necessarily need to be permanent.
• Depriving someone of their liberty: Detaining or confining someone against their will.

Intention to commit indictable offence

This is when you knew that there was someone inside the property where you committed the offence.

Difference between standard and aggravated break and enter

Standard break and enter is entering or breaking into the place of another person without the latter’s consent and having the intent to commit an offence. Whereas aggravated break and enter is entering and breaking in with the intent to commit a serious indictable offence.

Larceny

Larceny is also known as the offence of stealing. The maximum penalty for larceny depends on the value of the property stolen. If the property is valued at more than $5000, the maximum penalty is one or both of 24 months imprisonment and a fine of $5,500. If the property is valued at or less than $5,000, the maximum penalty is one or both of 12 months imprisonment or a fine of $5,500.

To convict an individual of larceny, the prosecution must prove the following elements beyond a reasonable doubt:

• The individual took and carried away the property
• The property belonged to another individual
• The owner of the property did not give permission to the individual to take it
• The individual did not intend to return the property to the owner
• The individual had no claim of right to the property
• The individual took the property in a dishonest manner

Defences to a charge of larceny include:

• The individual believing they had a claim of right to the property
• The individual did not act dishonestly
• Duress: Where someone coerced or threatened you into committing larceny
• Necessity: Where you committed the larceny to prevent serious death or injury to another person
• Consent
• Mental illness

Offences to larceny

There must be theft of property for the offence of larceny to be proven. The property taken must be something that has value and something tangible that lawfully belonged to someone else. It must be from someone who had possession of the item.

In some instances, people who do not ‘own’ something can still have the right to lawfully possess it. Intending to return the property or other property of equal value at another time is not a defence if you or someone else has received a benefit.

Goods in custody

The possession of property likely to have been stolen is known as “goods in custody”. It occurs when:

• Someone had something either in their custody, in the custody of another person, on their premises, or they gave custody to a person not legally entitled to possession, and
• That thing can be reasonably suspected of being unlawfully obtained or stolen.

The penalties depend on the type of property stolen or unlawfully obtained.

If the property was a motor vehicle or vessel, then the maximum penalty is one year imprisonment and/or a fine of 10 penalty units. For any other property type, the maximum penalty is six months imprisonment and/or a fine of five penalty units.

People can receive a broad range of penalties for this offence including a Conditional Release Order, Community Correction Order or fine. It is also possible for no conviction to be recorded.

Proceeds of Crime

Proceeds of crime means any property that is substantially realised or derived, indirectly or directly, by any person from the commission of a serious offence.

Back up charges

The prosecution is often charged with the main charge, followed by back up charges which are usually less serious than the main charge.

To reduce the chance of an accused person getting off without punishment, the prosecution will often include charges that are easier to prove – which are the backup charges.

Back up charges often have some, but not all, of the same elements as the main charge and will often carry lower penalties.

In some cases, the magistrate, judge or jury might find an accused person ‘not guilty’ of the main charge but guilty of the backup.

Criminal defence lawyers should be aware of all potential back up charges to specific criminal offences – even if the prosecution does not list those charges in the court attendance notice or indictment.

An accused person can in certain circumstances be found guilty of an alternative charge even if that charge is not contained in the indictment or court attendance notice.

Knowledge of back up charges is vital for negotiating favourable outcomes when the prosecution evidence is strong. This can be achieved by offering guilty pleas to minor charges on the condition that the prosecution withdraws the remaining, more serious charges.