The type of break and enter charge laid against you will depend on the circumstances at the time the alleged offence took place.
Break and Enter Charges
1. Enter dwelling house – this applies where a person has entered any building or structure, such as a boat or car, in which someone lives AND they intended to commit a serious indictable offence such as robbery, assault or theft (Maximum penalty of 10 years’ imprisonment – s.111(1) Crimes Act 1900)
'Breaking' can consist of opening a closed but unlocked door or window, but not usually opening something that is already partially open
2. Aggravated enter dwelling house – this applies in the same circumstances as the above, but there must also be some circumstances of aggravation. For example, if you were found to be carrying a weapon or the offence was committed in company (Maximum penalty of 14 years’ imprisonment – s.111(2) Crimes Act 1900)
3. Breaking etc into house with intent to commit a serious indictable offence – this applies where a person breaks and enters into OR out of any building or structure, such as a boat or car, in which someone lives AND they intended to commit a serious indictable offence. You do not have to take item of property for this offence to be proven, you only need to intend to take something (Maximum penalty of 10 years’ imprisonment – s.113(1) Crimes Act 1900)
4. Aggravated breaking etc into house with intent to commit a serious indictable offence – this applies in the same circumstances as the above, but there must also be some circumstances of aggravation (Maximum penalty of 14 years’ imprisonment – s.113(2) Crimes Act 1900)
5. Special aggravated breaking etc into house with intent to commit a serious indictable offence – this applies in the same circumstances as the above, but there must also be some special circumstances of aggravation such as where the person has maliciously inflicted grievous bodily harm on any person or is armed with a dangerous weapon like a firearm (Maximum penalty of 20 years’ imprisonment – s.113(3) Crimes Act 1900)
6. Breaking etc into house and committing a serious indictable offence – this is a traditional Break Enter and Steal offence. It applies where a person breaks and enters into OR out of any building or structure, such as a boat or car, in which someone lives AND they committed a serious indictable offence such as Larceny / Theft or Intimidation. So if you break in to scare somebody, you will be charged with this offence (Maximum penalty of 14 years’ imprisonment – s.112(1) Crimes Act 1900)
7. Aggravated breaking etc into house and committing a serious indictable offence – this applies in the same circumstances as the above, but there must also be some circumstances of aggravation (Maximum penalty of 20 years’ imprisonment – s.112(2) Crimes Act 1900)
8. Specially aggravated breaking etc into house and committing a serious indictable offence – this applies in the same circumstances as the above, but there must also be some special circumstances of aggravation (Maximum penalty of 25 years’ imprisonment – s.112(3) Crimes Act 1900)
9. Breaking, entering and assaulting with intent to murder etc – this applies where a person breaks and enters any building or structure, such as a boat or car, in which someone lives AND while in that building assaults with intent to murder any person OR inflicts grievous bodily harm upon that person (Maximum penalty of 25 years’ imprisonment – s.110 Crimes Act 1900)
It is also possible to be charged with break, enter and steal where you have broken out of a house, building, vehicle etc., where someone lives.
Steal property from dwelling house
It is also an offence to take property from a building or structure in which someone lives (Maximum penalty of 7 years’ imprisonment – s.148 Crimes Act 1900).
Defences
There are legal defences to break, enter and steal offence. Does your scenario fit into a legal defence? The following are possible defences:
- Necessity – where the break and enter was committed to prevent a serious injury or death to another person
- Duress – where someone coerced or threatened you into committing the break and enter
- Consent / permission – where the owner of the building or home gave you permission to break and enter
- Identification – have they got the wrong person?
Ideally you should speak to your solicitor before you speak to police – you need advice as to your rights and obligations so that you are more comfortable with the processes and understand what is happening. Only then can you make the best decisions.
YOUR NEXT STEPS WHEN YOU ARE CHARGED WITH A BREAK AND ENTER TYPE OFFENCE
1. Contact us. Early contact with Tankard’s Law is extremely important, so that you can start to take the right actions immediately. Do you have an alibi? What permission do you have to be at the location? Should you participate in a line up? Obtaining advice in relation to making a statement to police or not. You need early advice.
2. Gather material immediately. You should immediately type out your version of what occurred during the incident and provide this to your lawyer – details get lost in your memory over time. This step is crucial. You should find out who else might be a witness to what took place and get their details. If you are saying that you were somewhere else, get statements proving this as soon as possible. Is there CCTV footage that backs up your story? Let us help secure this important evidence.
3. Prepare. Your best chance in achieving the outcome that you want is to prepare your case properly. Let us help you.
If you have a question about the processes involved in arrest or charge, or attending court and what charges you face or need help understanding what the police are saying to you, contact us by phone on 02 6921 3220 or make a website enquiry. We will get back to you promptly.
Principal Solicitor and Director, Zac Tankard, has been helping Riverina locals charged with criminal offences since 1998. There is no one better qualified to get behind you when you need it most.