In New South Wales, there are numerous types of ‘break and enter’ offences under the Crimes Act 1900 (NSW). Notably, NSW retains the highest full-time imprisonment rate for break and enter, and burglary offences across Australia, as well as when compared to countries such as New Zealand, England, and the United States.

Whilst ‘break and enter’ offences are commonly associated with forceful entry into a premises, at law ‘break’ merely means that the person has broken the seal of the property. 

This may be satisfied by the common perception of physically breaking into a premises, as well as by opening a closed door or window and entering the property, even if it is unlocked. 

Notably, it will not be considered a break and enter where the person has lawful authority to enter the premises. This may be due to consent of the owner, or due to their own rights in the premises. 

One of the most common offences of this category is ‘break and enter and commit serious indictable offence’. 

This is criminalised under section 112(1) of the Act, which provides that it is an offence to break and enter any dwelling-house or other building and commit any serious indictable offence therein.

A ‘serious indictable offence’ is defined as an offence carrying a term of imprisonment of five years or more, with the most common offence typically associated being stealing. However, this encompasses a wide range of offences from intimidation to sexual assault. 

Where the serious indictable offence is stealing or intentionally or recklessly destroying or damaging property, and value of property does not exceed $60,000, it will be classified as a ‘table 1’ offence.

‘Table 1’ offences are to be dealt with summarily in the Local Court, unless the prosecution or accused person elects for the matter to be heard in the District Court.

In the Local Court, the maximum penalty applicable is limited to 2 years imprisonment and/or a $11,000 fine. 

However, in any other case, the matter will be considered ‘strictly indictable’ and will have to be dealt with in the District Court. A maximum penalty of 14 years imprisonment is then applicable. 

The Act also provides circumstances which will make the offence ‘aggravated’, including where the alleged offender:

• was armed with an offensive weapon, or instrument,
• was in the company of another person or persons,
• used corporal violence on any person (i.e., violence involving someone’s body),
• intentionally or recklessly inflicted actual bodily harm on any person,
• deprived any person of their liberty, or 
• knew that there was a person, or persons, in the place where the offence is alleged to be committed.

In such cases, the offence carries a maximum penalty of 20 years imprisonment. 

However, it may still be dealt with summarily in the Local Court (where the serious indictable offence is stealing or intentionally or recklessly destroying or damaging property, and value of property does not exceed $60,000). 

The maximum penalty will still be limited to 2 years imprisonment and/or a $11,000 fine. 

The Act further provides circumstances which will make the offence ‘especially aggravated’, including where the alleged offender:

• intentionally wounds or intentionally inflicts grievous bodily harm on any person,
• inflicts grievous bodily harm on any person and is reckless as to causing actual bodily harm to that or any other person, or 
• is armed with a dangerous weapon.

In such cases, the offence is strictly indictable, and carries a maximum penalty of 25 years imprisonment. 

In sentencing offenders for ‘break, enter and steal’ offences under section 112(1), the court has developed a guideline judgement of factors they will consider.

These factors include if the offence is the result of professional planning, organisation, and execution, whether the offender has a prior record particularly for like offences, and if the offence is committed at premises of the elderly, the sick or the disabled.

Other relevant factors include whether the offence is accompanied by vandalism and by any other significant damage to property, if it is committed in a series of repeat incursions into the same premises, and the value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value.

It is also notable whether the offence was committed at a time when it was likely that the premises would be occupied (particularly at night), the trauma suffered by the victim, and whether force was used or threatened. 

‍