Break enter and commit serious indictable offence (non-aggravated)

What is the offence of Break enter and commit serious indictable offence?

The offence of Break enter and commit serious indictable offence is found at section 112 of the Crimes Act 1900.

Break enter and commit serious indictable offence has long been regarded as a serious crime. NSW retains the highest full-time imprisonment rate for break and enter/burglary offences. However, first time offenders are often dealt with leniently by courts. 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, 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 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).
  2. Entered (It must be proved that the accused was in the building or land).
  3. Committed a serious indictable offence (an offence carrying a term of imprisonment of 5 years or more).

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.

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 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.

Prior convictions are relevant to the determination of whether leniency should be extended to an offender.

An offence of Break enter and commit serious indictable offence carries a maximum penalty of 14 years imprisonment in the District Court or 2 years imprisonment if the matter is dealt with in the Local Court. However, these penalties are typically reserved for the worst offenders. Nonetheless, our solicitors have a proven track record of not only keeping our clients out of gaol but also, depending on the seriousness of the allegation, having the offence dealt with by way of section 10 of the Crimes (Sentencing Procedure) Act, meaning no conviction will be recorded, there is no other penalty and you will have no criminal record. To find out more about a section 10, click here.

Penalties that a court can impose in NSW are:

Case Study

AC Law Group represented a client who was charged with Break, enter and steal on the basis of his DNA being found on a cigarette in the property of person whose house had been broken into and their property allegedly being found on our client. Our criminal lawyer submitted that there was a reasonable hypothesis consistent with evidence, namely the cigarette had entered the yard either by the wind or on someone’s shoe. It was submitted there was no evidence the property (an Ipod music player) was not linked to the victim by it’s serial number or even a music tracklist. The Magistrate found our client not guilty.

Case Study

AC Law Group represented a client accused of breaking into a retail store in Westfield. CCTV showed someone sliding through a gap in a glass sliding door. Our client had been arrested with the safe of the store in his car following a police pursuit immediately after the store was entered. Our solicitor argued there was no evidence at all of a break because our client had simply walked in. The Magistrate agreed the offence had not been made out and our client was found not guilty.

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