FREE CONSULTATION
Speak to a Principal Lawyer
Charged with Break and Enter? What You Need to Know
A break and enter charge in NSW is one of the most serious property offences a person can face. Even the basic form of the offence carries up to 10 or 14 years imprisonment, and aggravated forms can result in sentences of up to 25 years.
If you have been charged with break and enter in Burwood, Sydney CBD, or Parramatta, the strength of your early legal representation often determines the outcome. These charges almost always reach the District Court unless they are reduced or negotiated down at an early stage.
Break and enter is a serious criminal offense and is often described as a form of burglary involving theft, property damage, or other criminal conduct. Because of the severity of the alleged crime, obtaining early defense advice from an experienced attorney or criminal law firm can significantly affect the outcome of the case.
The Australian Legal Practice offers free initial consultations and direct access to criminal lawyers across Sydney. Call (02) 8084 9929 any time, day or night, including weekends and public holidays.
What Is Break and Enter?
Break and enter is the offence of unlawfully entering a building by breaking, with the intention of committing or in fact committing a serious indictable offence inside.
In many overseas jurisdictions, conduct of this nature may be described as burglary, a felony offense, or, in less serious circumstances, a misdemeanor property crime. In NSW, however, the applicable offense is governed by the Crimes Act 1900 (NSW) and prosecuted under State law.
A common misconception is that “breaking” requires force or damage. Under NSW law, breaking includes opening any closed door, window, or gate, even if it is unlocked. Reaching through an open window can also satisfy the breaking element. There does not need to be any damage to the property.
Break and enter covers a wide range of conduct, including:
- Home burglary matters, where a person enters a residential dwelling to commit theft or steal property
- Commercial break-ins, where a person enters a shop, warehouse, office, or other place of business outside business hours
- Break and steal, where the entry is for the purpose of larceny
- Aggravated break-ins involving weapons, violence, or multiple offenders
- Specially aggravated matters involving grievous bodily harm or dangerous weapons
The offence is distinct from trespass (which does not require intent to commit a further offence) and from robbery (which involves taking property directly from a person by force).
Break and Enter Under Australian Law
The principal break and enter offences in NSW are contained in sections 109 to 115 of the Crimes Act 1900 (NSW).
These provisions form part of the NSW criminal code framework and establish how each offense is investigated, prosecuted, and defended. Depending on the circumstances, allegations involving burglary, theft, or property crime may proceed under different sections of the Code.
Offence | Section | Basic Penalty | Aggravated | Specially Aggravated |
Break, enter and commit serious indictable offence | s 112 | 14 years | 20 years | 25 years |
Break and enter with intent to commit serious indictable offence | s 113 | 10 years | 14 years | – |
Entering dwelling-house with intent | s 109 | 14 years | 20 years | 25 years |
Entering with intent to commit indictable offence | s 111 | 10 years | 14 years | – |
Being armed with intent to commit indictable offence | s 114 | 7 years | – | – |
Convicted offender armed with intent | s 115 | 10 years | – | – |
Definition of “serious indictable offence” (s 4 Crimes Act 1900): an indictable offence punishable by imprisonment for life or for 5 or more years. Larceny under section 117 qualifies, which is why most domestic break-ins are charged as break, enter and steal under section 112.
Theft-related allegations commonly form the basis of these prosecutions, and the seriousness of the offense often depends on the nature of the crime committed after entry.
Circumstances of aggravation under section 105A(1) include:
- Being armed with an offensive weapon or instrument
- Being in the company of another person
- Use of corporal violence
- Intentionally or recklessly inflicting actual bodily harm
- Depriving someone of their liberty
- Knowing there was a person in the dwelling-house or building
Special aggravation under section 105A(2) applies where the offender:
- Intentionally wounds or inflicts grievous bodily harm
- Is armed with a dangerous weapon (firearm or military weapon)
Sections 112(1) and 113(1) (basic offences) are Table 1 offences under Schedule 1 of the Criminal Procedure Act 1986 (NSW) and can be heard summarily in the Local Court. Aggravated and specially aggravated offences are strictly indictable and must be heard in the District Court.
What Must the Prosecution Prove?
The elements that the prosecution must prove beyond reasonable doubt depend on the section charged.
Like any criminal offense, the prosecution bears the burden of proving each element beyond reasonable doubt. The defendant is presumed innocent unless the State can establish every required element.
For section 112(1) (break, enter and commit serious indictable offence):
- The accused broke into a dwelling-house or other building
- The accused entered the dwelling-house or other building
- While inside, the accused committed a serious indictable offence
For section 113(1) (break and enter with intent):
- The accused broke into a dwelling-house or other building
- The accused entered the building
- At the time of entry, the accused intended to commit a serious indictable offence inside
For aggravated offences, the prosecution must additionally prove the relevant circumstance of aggravation. For specially aggravated offences, the prosecution must prove special aggravation under section 105A(2).
If the prosecution cannot prove any one of these elements, the charge fails. Under section 115A of the Crimes Act, an alternative verdict on the basic offence may be open where the aggravated charge is not established.
Penalties for Break and Enter in NSW
The maximum penalties for break and enter offences are amongst the most severe property crime penalties in NSW. Where the matter is strictly indictable, the Local Court has no jurisdiction.
Court / Offence | Maximum Imprisonment |
Local Court, s 112(1) or s 113(1) basic | 2 years per offence, 5 years aggregate |
District Court, s 113(1) | 10 years |
District Court, s 112(1) | 14 years |
District Court, s 113(2) aggravated | 14 years |
District Court, s 112(2) aggravated | 20 years |
District Court, s 112(3) specially aggravated | 25 years |
The degree of criminality alleged, the value of property involved, and whether the offense included burglary, theft, violence, or weapons can all influence the sentence ultimately imposed.
Sentencing options available to the court include:
- Conditional Release Order (CRO) with or without conviction (for very minor matters)
- Community Correction Order (CCO), up to 3 years
- Intensive Correction Order (ICO), served in the community
- Full-time imprisonment
Section 10 dismissals are rare for break and enter matters given the seriousness of the conduct.
Factors that influence sentence severity (drawn from the guideline judgment in R v Ponfield (1999) 48 NSWLR 327) include: the value and significance of the property taken, premeditation and planning, whether the premises were occupied at the time, multiple offenders or organised criminal activity, damage caused to the premises, prior record (particularly previous break-and-enter convictions), use of weapons or threat of violence, targeting vulnerable victims, and restitution and remorse.
Possible Defences Against Break and Enter
Several defense strategies can result in a break and enter charge being dismissed, withdrawn, or reduced. The right defense depends on the specific facts of your matter.
- No “break”: The entry was through a fully open door or window, or with consent of the occupant
- No “entry”: The accused was outside the premises and never crossed the threshold
- No serious indictable offence intended or committed: The accused had no intent to commit any further crime, or no further crime occurred
- Mistaken identity: A common issue in break and enter matters, particularly where DNA, fingerprints, or CCTV evidence is disputed
- Claim of right: Where the further offence is larceny, a genuine belief in ownership of the property may negate the offence
- Duress or necessity: The accused was forced to act by threats or to avoid imminent greater harm
- Mental health condition: A section 14 order under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) where mental health was a relevant factor
- No aggravating circumstance: Demonstrating that the alleged aggravation does not apply can reduce the charge to the basic form under section 115A
Every defense must be assessed according to the evidence, the applicable section of the Crimes Act, and the particular facts surrounding the alleged crime. A skilled attorney can identify weaknesses in the prosecution case and develop an effective defense strategy for the defendant.
The prosecution case in break and enter matters often rests on forensic evidence and witness identification. A skilled criminal lawyer will examine the chain of evidence and identify weaknesses in the prosecution case.
Your Options When Charged with Break and Enter
Once you are charged with break and enter, you generally have three pathways to resolve the matter. Whether the allegation involves burglary, theft, or another property offense, obtaining legal advice early is critical.
- Negotiate with the prosecution. In appropriate cases, your lawyer at The Australian Legal Practice can engage with the Office of the Director of Public Prosecutions (or police prosecutors for Local Court matters) to negotiate a reduction in charge. An aggravated charge under section 112(2) can sometimes be reduced to the basic offence under section 112(1), or further reduced to a Table 1 offence that can be heard in the Local Court.
- Plead not guilty and contest the matter. Where there is a genuine defense, or where the prosecution evidence is weak on a particular element, the matter can proceed to a defended hearing or trial. Identification evidence, forensic evidence, and the question of whether a “break” occurred are frequently contested issues.
- Plead guilty and focus on the best possible sentence. Where the evidence is strong and no defence applies, an early plea of guilty attracts a sentencing discount of up to 25% and demonstrates remorse. The focus then shifts to securing the most favourable sentence, ideally a community-based order rather than full-time custody. Strong character references, evidence of rehabilitation, and restitution to victims are critical. Even where a defendant intends to plead guilty, a strong defense team can often make submissions aimed at reducing penalties and avoiding full-time custody.
The right strategy depends on the strength of the prosecution case, the seriousness of the alleged conduct, and your personal circumstances.
Why Choose The Australian Legal Practice for Break and Enter Charges
The Australian Legal Practice is a Sydney-based criminal law firm well placed to defend break and enter charges across Burwood, Sydney CBD, and Parramatta.
- Three court-adjacent offices: Burwood, Sydney CBD, and Parramatta, all close to the courts where break and enter matters are heard
- 24/7 availability: Direct access to principal lawyers and experienced criminal defense lawyers on (02) 8084 9929
- Free initial consultation: Understand your options and realistic outcomes before committing to legal action. Contact our firm for immediate assistance.
- Principal-level representation: Every matter is managed by senior solicitors with experience in District Court trials and sentencing
- Bail application expertise: Break and enter matters often involve show cause bail considerations, and we prepare urgent applications at short notice
- Fixed fee arrangements: Transparent pricing where the scope allows, with clear costs disclosure under the Legal Profession Uniform Law (NSW)
Call us now on (02) 8084 9929 to arrange a free initial consultation, or contact our firm to discuss allegations involving burglary, theft, or any related criminal offense.
ONLINE ENQUIRY
Make a booking to arrange a free consult today.
Call A Lawyer NOw
AVAILABLE 24/7
Frequently Asked Questions
Section 112 covers break, enter and commit a serious indictable offence (such as larceny). Section 113 covers break and enter with intent to commit a serious indictable offence. Section 112 carries a higher maximum penalty (14 years vs 10 years) because the further offence has actually been committed. Both offenses are regarded as serious crimes under NSW law and may be viewed similarly to felony-level property offenses in other jurisdictions.
No. Under NSW law, “breaking” includes opening any closed door, window, or gate, even if unlocked. Reaching through an open window, or pushing past a partially open door, can also satisfy the breaking element. No damage to the property is required.
Basic offences under sections 112(1) and 113(1) are Table 1 offences and can be dealt with summarily in the Local Court, where the maximum is 2 years per offence. Aggravated and specially aggravated offences are strictly indictable and must be heard in the District Court.
Bail depends on the seriousness of the alleged offence, your prior record, and your personal circumstances. Aggravated break and enter under section 112(2) is a show cause offence, meaning the accused must demonstrate why detention is not justified. Urgent bail applications can be prepared and presented at short notice.
An aggravated break and enter is committed in circumstances of aggravation defined in section 105A(1) of the Crimes Act 1900 (NSW), including being armed with an offensive weapon, being in company, using corporal violence, inflicting actual bodily harm, depriving someone of liberty, or knowing people were in the dwelling. The maximum penalty rises to 20 years under section 112(2). The degree of aggravation alleged by the prosecution can substantially increase the maximum penalty available to the court.
