Break enter and commit serious indictable offence (aggravated or specially aggravated)

What is the offence of Break enter and commit serious indictable offence (aggravated or specially aggravated)?

The offence of Break enter and commit serious indictable offence (aggravated or specially aggravated) is found at section 112 of the Crimes Act 1900. It is a serious criminal offence.

Break enter and commit serious indictable offence (aggravated or specially aggravated) have long been regarded as serious crimes. NSW retains the highest full-time imprisonment rate for break and enter/burglary offences. Break enter and commit serious indictable offence is also an offence that requires experienced solicitors to defend as DNA and fingerprints are often a live issue and may be excluded or given limited weight in circumstantial cases.

If you are charged with the offence of Break enter and commit serious indictable offence (aggravated or specially aggravated), your options will normally be to plead guilty or not guilty.

Pleading not guilty

You will be found not guilty of the offence of Break enter and commit serious indictable offence (aggravated or specially aggravated) if the police cannot prove beyond reasonable doubt:

  1. You broke by ‘actual breaking’ (where the security of the house is infringed though there need not be any actual breaking of any object. It is not a breaking to further open a door or window which is partly open) or ‘constructive breaking (where entry is obtained by fraud, or threats, or by the use of a key which the person is not entitled to use); and
  2. Entered (It must be proved that you were in the building or land); and
  3. Committed a serious indictable offence (an offence carrying a term of imprisonment of 5 years or more); and
  4. In circumstances of aggravation, means circumstances involving any one or more of the following:
    1. You are armed with an offensive weapon, or instrument;
    2. You are in the company of another person or persons;
    3. You use corporal violence on any person;
    4. You intentionally or recklessly inflict actual bodily harm on any person;
    5. You deprive any person of his or her liberty;
    6. You know that there is a person, or that there are persons, in the place where the offence is alleged to be committed. OR
  5. In circumstances of special aggravation, means circumstances involving any one or more of the following:
    1. You intentionally wound or intentionally inflict grievous bodily harm on any person;
    2. You inflict grievous bodily harm on any person and are reckless as to causing actual bodily harm to that or any other person,
    3. You are armed with a dangerous weapon (a firearm, imitation firearm, a prohibited weapon or a spear gun).

If the police are able to prove the above elements beyond reasonable doubt, you will still be found not guilty if any of the following defences can be established:

Contact our offices in Sydney, Parramatta, Blacktown or Redfern to organise a time for one of our criminal lawyers to advise you of your prospects of successfully defending the charge of Break enter and commit serious indictable offence (aggravated or specially aggravated).

Pleading guilty

If you agree that you have committed the offence (and the police are able to prove so), it is best to plead guilty as you will normally receive a discount on sentence and it will demonstrate remorse and contrition. Alternatively, it may be the case that one of our experienced solicitors can negotiate with prosecutors for you to plead guilty to less serious facts or even a less serious charge.

Break and enter offences are subject to a guideline judgement; however, many of the guideline factors have not been incorporated into other areas of the law. In assessing the objective seriousness of an offender, the court will consider whether: the offence is committed whilst the offender is at conditional liberty on bail or on parole; the offence is the result of professional planning, organisation and execution; the offence is committed at premises of the elderly, the sick or the disabled; the offence is accompanied by vandalism and by any other significant damage to property; the multiplicity of offences; the offence is committed in a series of repeat incursions into the same premises; the value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value;  the offence was committed at a time when, absent specific knowledge on the part of the offender it was likely that the premises would be occupied, particularly at night; that actual trauma was suffered by the victim; and that force was used or threatened.

An offence of Break enter and commit serious indictable offence (aggravated) carries a maximum penalty of 20 years imprisonment in the District Court. The offence of Break enter and commit serious indictable offence (specially aggravated) carries a maximum penalty of 25 years imprisonment in the District Court. However, these penalties are typically reserved for the worst offenders. Aggravated break and enter offences are extremely serious and carry standard non parole periods. If you are charged with either of these offences you should contact our office immediately.

Penalties that a court can impose in NSW are:

Case Study

Mr Correy represented an Accused person charged with Break, enter and steal as part of a joint criminal enterprise. The Accused person dropped a friend off and waited for him outside his workplace, a warehouse. His friend returned with with goods stolen from the workplace, which he had broken into. Mr Correy successfully argued that there was no evidence that the Accused person could have known that his friend was breaking into the warehouse given he was waiting on the road and had no line of sight into the warehouse. His friend provided an affidavit stating that he told the Accused the goods he took from the warehouse were defective and unwanted. The charge was withdrawn.

Case Study

AC Law Group represented a client was charged with a dozen break, enter and steal in company offences that were alleged to have occurred in schools. The Brief of Evidence was almost 10,000 pages. Our solicitor carefully dissected the Brief of Evidence and concluded that but for the one offence, which our client admitted to the police, there was no other evidence such as DNA or fingerprint at all. Our solicitor took the matter to a paper committal and had the charges for which their was no evidence dismissed by the Magistrate.

 

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