Criminal Offences

Break, Enter & Steal

The law around break and enter is very complicated with significant penalties imposed for those who are found guilty. The offence can be found under section 112 of the Crimes Act 1900 (NSW), which states that:

  1. A person who:
    1. Breaks and enters any dwelling-house or other building and commits any serious indictable therein, or
    2. Being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building
      is guilty of an offence.
  2. A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in aggravation.
  3. A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) is circumstances of special aggravation.

There are also very similar provisions under the Crimes Act 1900 where:

  • You may break into the dwelling with the intent to commit a serious indictable offence, but for whatever reason no indictable offence is committed.
  • You break and enter into a place of divine worship and commit a serious indictable offence, or intend to commit a serious indictable offence.
  • You break out after committing a serious indictable offence.

It is also important to understand that charges of break and enter may also be made against you despite the fact that property may have not been stolen. In fact, the law understands that stealing items is not the only reason someone may break and enter. Offences such as murder or sexual assault can be committed by someone breaking and entering and therefore must be a separate offence. Section 112 aims to encompass all serious indictable offences as a result of a break and enter.

Furthermore, an understanding of what the law classifies as break and enter is also helpful, should you be faced with such a charge. Breaks can mean an actual or constructive break. Actual breaking is where the security of the house is infringed, through there may not be any actual breaking of an object.

Most people think of smashing a window or picking a lock, however the opening of a closed door or window is sufficient to amount to ‘breaks’. However, ‘breaks’ do not include entering through an already opened window or opened door. Meanwhile, constructive breaking is where entry is obtained by fraud, threats or the use of a key in which the person is not entitled to use.

The law may also find individuals guilty under ‘circumstances of aggravation’ or ‘special aggravation. Circumstance of aggravation are listed in section 105A of the Crimes Act 1900 and include being armed with an offensive weapon or instrument, the offence is committed with other people, corporal violence is used, intention or reckless bodily harm is inflicted, liberty is deprived from a person or persons and the offender know that a person or persons are present. Alternatively, special aggravation means circumstances where an alleged offender wounds, intentionally or recklessly inflict grievous bodily harm, and/or is armed with a dangerous weapon.

As a leading criminal defence law firm based in Sydney, our expert team of criminal lawyers possess a wealth of knowledge in relation to break and enter offences.

If you, or somebody you know is facing charges of break and enter, contact Benjamin Leonardo – The Defenders now for a consultation.


Break and enter is perceived as a very serious crime in NSW and attracts significant penalties. As seen in section 112 of the Crimes Act 1900, there are very levels of break and enter, all of which have their own associated maximum penalty.

Section 112 (1) of the Crimes Act 1900 details the criminal act of ‘Breaking and entering, committing serious indictable offence. Individuals who are found guilty of this offence are liable to a maximum penalty of 14 years imprisonment. Meanwhile, under section 112 (2), individuals who are found guilty of break and enter in aggravation are liable to a maximum of 20 years imprisonment, while those found guilty under section 112 (3) are liable to a maximum penalty of 25 years imprisonment.

While, the offence of break and enter may have significant gaol sentences imposed, Crimes Statistics Australia shows that for offences such as unlawful entry, burglary and break and enter, 48% of offenders received a full time custodial sentence. However, these statistics also demonstrate that other penalties may be imposed by the Court. For example, 43% of offenders in the same category received non-custodial sentences, while 9% required to pay a monetary order. Therefore, upon consideration of the case and the offender’s personal circumstances, the Court may impose sentences such as intensive correction orders (ICOs), community service orders (CSOs), suspended sentences, home detention or fines.


If you, or someone you know is facing charges of break and enter, the prosecution must prove beyond a reasonable doubt:

  1. That you broke and entered
    (a dwelling-house, school house, shop, warehouse, counting-house, office, store, garage, pavilion, factory, workshop; or a building belonging to the Crown, Government department or council.)
  2. And committed a serious indictable offence.

In necessary cases, it is also up to the prosecution to establish and prove circumstances of aggravation or special aggravation.

If you tend to agree with the allegations set against you and the prosecution is able to successfully prove these claims, you have the option to enter a guilty plea. When this happens, the case will generally proceed to a sentencing hearing, where the Court will enforce the appropriate penalties. Evidently, in this instance, offenders may be looking at a maximum penalty of anywhere between 14-25 years imprisonment.

However, a guilty plea may be more favourable as opposed to being found guilty by a Jury, in which lesser penalties are usually applied. This may take form as a reduced sentence, or other penalties such as community service and section 10 dismissals depending on the nature of the crime, criminal history and personal circumstances.


You also have the option to plead not guilty should you wish. If you decide to plead not guilty, a brief of evidence will be served. This brief contains all the evidence that the Police will use to try and convict you of the break and enter. Our expert criminal defence lawyers will thoroughly and carefully examine this brief and provide you with advice in relation to the findings. Once the evidence has been considered, you will have the ability to adhere to the not guilty plea or change your plea to guilty. Regardless of the decision, a hearing date will be set.

At the defended hearing, witnesses will be in Court to explain their own version of events. These witnesses can include the Police, forensic experts, anyone who witnessed the event, anyone who was in the area at the time of the offence and any victims. Your criminal defence lawyers will then have the ability to cross-examine these witnesses and ask the questions that have not yet been asked of them or to cast doubt of the reliability of the evidence they present to the Court.

It is also up to you whether you testify or not. Testifying gives you the opportunity to explain the event yourself, however, it is important to understand that you are also cross-examined by the prosecution. There are many reasons why a defendant may not want to testify. It is important to remember that if you don’t want to testify, no one can assume that you are guilty on this fact alone. Any findings of guilt must be based on the prosecution evidence, not simply because you didn’t testify. Your criminal defence lawyer can provide honest and accurate advice in relation to whether you should testify or not.

During the case proceedings your criminal lawyer will have the ability to dismiss the allegations using relevant defence strategies. Should these defences be successful which will cast doubt on the evidence provided by the prosecution, you will be found not guilty for the charges of break and enter. However, It is important to understand that some defences only provide a partial defence in which you may be found guilty to a lesser charge, however lesser penalties will be imposed.


There are a number of defences that our criminal defence lawyers may argue in relation to break and enter. These can include:

Wrongfully Accused: Unfortunately, in some cases individuals find themselves facing a trial for a crime they didn’t commit as per the Crimes Act 1900. If there is evidence that you were not the one who committed the crime of break and enter, you may have a suitable defence.

Necessity: The defence of necessity aims to justify unlawful actions if it can be proven an individual only participated in a crime in order to protect themselves from danger from either human or natural forces. Our criminal defence lawyers will need to successfully argue that the criminal act was only undertaken in order to avoid consequences that are deemed as “irreparable evil”, and there were no other alternatives to avoid the threat. The accused must also honestly believe that they were in a situation of “imminent peril” in order for their actions to be justified in the Court.

Duress: Involves the use of harmful threats that depict death or grievous bodily harm which may coerce the accused to partake in illegal activities that they would not have if the threats had not been made.


When the offence that has been committed is stealing or maliciously destroying or damaging property up to the value of $15,000, the offence is classified as a table 1 offence and is to be dealt with by the Local Court. However, if an election is made by either yourself or the prosecution, the matter may be heard at a District Court on indictment.

However, if the offence that has been committed is a more serious offence, it will be prosecuted on indictment in the District Court.

The charge of break and enter is deemed as a very serious criminal offence. If you or someone you know is facing such a charge, a term of imprisonment is probable.

With a 90% case success rate and numerous industry award wins, Benjamin Leonardo – The Defenders are some of Sydney’s best criminal defence lawyers. For the best possible outcome, contact our criminal lawyers now for a consultation.