Break and Enter

Section 112 of the Crimes Act 1900 states:

(1) A person who:

(a) breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or

(b) 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

Section 112(2) states

A person is guilty under this subsection if the person commits an offence under subsection (1) in aggravation.

Section 112(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.

This area of law is very complicated and the penalties are severe. The best thing for you to do is seek legal advice if there is anything you don’t understand about hearings, the process, what your rights are, what you should do, etc.

Contact Benjamin & Leonardo Criminal Defence Lawyers and get your first conference FREE.

Correcting a Misconception

Some people think that this charge is actually break, enter and steal. But it is not only for the purpose of stealing that someone may break and enter and so the law has come to reflect this. Offences such as murder or sexual assault can be committed by someone breaking and entering and so it has become a separate offence to break and enter for the purpose of stealing. But this particular offence encompasses all serious indictable offences.

Break and Enter Definition

Breaks can mean an actual or constructive break.  Actual breaking is where the security of the house is infringed, though there may not be any actual breaking of any object. Most people think of smashing a window or picking a lock. But, the opening of a closed door or window is sufficient to amount to ‘breaks’.

However, ‘breaks’ does not include entering through an already opened window or opened door.

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.

Circumstances 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, intentional or reckless bodily harm is inflicted, liberty is deprived from a person or persons and the offender knows that a person or persons are present.

Special aggravation means circumstances where an alleged offender wounds, intentionally or recklessly inflicts grievous bodily harm, and/or is armed with a dangerous weapon.

Not guilty

For you to be convicted 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 building belonging to the crown, Government department or council.)

  1. and committed a serious indictable offence.

And if necessary

the circumstances of aggravation, or special aggravation.


It is up to the prosecution to prove every element of this crime beyond a reasonable doubt. It is not up to you to prove your innocence, but sometime explanations may need to be given so as to discredit the prosecution case, just as a precaution. If you decide to plead not guilty, a brief of evidence will be served. This brief contains all the evidence the police will use to try and convict you of the break and enter. This brief must be examined carefully. Once the brief has been considered, you can choose to adhere to the not guilty plea, or change your plea to guilty. After this, 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 the offence and any victim(s). Your legal team 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 on the reliability of the evidence they present to the court.

It is up to you whether you testify or not. Testifying gives you the opportunity to explain the event yourself. But, this also means you are 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 testify no one can assume that you are guilty simply because you didn’t testify. Any findings of guilty must be based on the prosecution evidence, not simply because you didn’t testify. Remember, that burden is on the prosecution and not you. When you are represented your solicitor can advise you whether or not you should testify.

Possible Break and Enter Defences

There are a number of defences that can be argued in relation to break and enter. These can include:

  • Wrongfully accused (you are not the person who committed this crime)
  • Necessity
  • Duress

A defended hearing requires significant preparation. It helps to have representation with expertise in Criminal law.  The brief of evidence must be carefully dissected to identify the issues and you need to determine whether to issue subpoenas.

Which court?

When the serious indictable offence committed is stealing or maliciously destroying or damaging property up to the value of $15 000, the offence is a table 1 offence and is to be dealt with by the Local Court, unless an election is made by you or the prosecution for the matter to be held in the district court on indictment. The vast majority of break and enter matters relating to stealing will be dealt with in the local court.

However, if your offence is deemed a serious offence it will be prosecuted on indictment in the District court.

This is a serious offence. If you are found guilty you could be facing a term of imprisonment. You should see a partner at Benjamin & Leonardo Criminal Defence Lawyers as soon as possible for honest and reliable legal advice.

Break and Enter Sentencing

Offence Maximum Penalty
S112 (1) Breaking and entering, committing serious indictable offence 14 years imprisonment
S112 (2) In aggravation 20 yrs imprisonment
S112 (3) Specially aggravated 25 years imprisonment


If you decide to plead guilty to a break and enter NSW offence, you will still have a sentencing hearing. Benjamin & Leonardo Criminal Defence Lawyers can help you by preparing submissions to the court as to what penalty is appropriate based on your individual circumstances.

The Partners at Benjamin & Leonardo Criminal Defence Lawyers have a wealth of experience defending break and enter charges and appearing at sentencing hearings.

Please contact our office for your FREE conference.