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It is an offence to break or enter premises or dwellings illegally in New South Wales (NSW). Under the Crimes Act 1900 (NSW), a person can illegally enter a premise or residence by;
This offence becomes worse if the person;
If an individual is convicted in a New South Wales court for a Break and Enter offence, the offence will show up as a disclosable court outcome (DCO) on a Nationally Coordinated Criminal History Check in NSW.
The Crimes Act 1900 (NSW) is the formal legislation that handles such misdemeanours and related actions in NSW. Division 4 of the Act and the sections following it prohibits, defines and issues punishments for cases that constitute a Break and Enter offence.
Such matters are usually serious offences heard by a jury, and they can also determine the appropriate sentencing for the offender.
The actions for Break and Enter offences in New South Wales include;
Section 109 of the Crimes Act 1900 (NSW) describes a crime where a person;
It is a crime that incurs punishments up to 14 years imprisonment for any convicted offender under the Code.
For a case of aggravation (defined in any other legislation or by a court), the person will be liable to punishments reaching as high as 20 years imprisonment.
Other aggravated cases can be labelled "special" by the court and result in punishments reaching 25 years.
Many circumstances can qualify as cases for aggravation, including;
It is a serious offence under section 110 of the Crimes Act 1900 (NSW) for a person to break or enter into a dwelling or an apartment and;
A person guilty of this offence or similar is liable to punishments reaching as high as 25 years imprisonment.
Section 111 of the Crimes Act 1900 (NSW) punishes an offence where a person breaks into a dwelling with an intention to commit a serious indictable offence. It is immaterial for this section and all other similar charges what the reason for committing the indictable offence is
This offence carries a basic sentencing of 10 years imprisonment for all accused persons.
If the court rules a case or circumstance of aggravation, the sentencing increases. Subsection 2 of s111 stipulates an increased penalty of 14 years imprisonment for any circumstance of aggravation on the matter.
Special aggravated cases
Some cases are considered to be especially aggravating under this section. If the court considers a circumstance to be a particular case of aggravation, it will impose penalties of 20 years imprisonment for such an offender.
It is a criminal act for a person to knowingly and maliciously break into a building or other dwelling. Or where the person being in a dwelling commits an indictable offence in NSW and breaks out of such.
Section 112 of the Crimes Act 1900 (NSW) prescribes punishments of 14 years imprisonment for all those the court finds guilty.
If the court considers the matter to have aggravating actions or circumstances, the convicted person will be liable to punishments of 20 years imprisonment.
There are also cases for special aggravation, especially when the court decides how "hard" the aggravating evidence is. Subsection 3 of section 112 stipulates penalties reaching 25 years imprisonment if the court rules a person to be guilty of special aggravating circumstances.
Section 113 of the Crimes Act 1900 (NSW) seriously punishes the act of even attempting to commit an indictable offence after illegally breaking into a building. The crime attracts a maximum penalty of 10 years imprisonment for a basic offence.
It includes where a person breaks into a legal dwelling or apartment with the intent to commit a serious offence. However, the prosecutor must prove in court that the person had the intention of committing this offence.
If it is a case of aggravation, the punishment increases to 14 years under subsection 2 of the Crimes Act. It is 20 years imprisonment if the courts decide instances of such aggravation were in special circumstances.
Section 114 of the Crimes Act 1900 (NSW) lists some offensive actions with severe punishments if a person;
Such behaviours leading to offences are punishable with seven years imprisonment under section 114.
A convicted offender who further commits an offence under section 114 is liable to ten years imprisonment. It is an "aggravating circumstance" for such a person to repeat the offence.
Section 115A of the Crimes Act 1900 (NSW) provides various forms of alternative sentencing, especially if the jury is not convinced that the accused person deserves punishment for the original offence. The s115A allows the court to issue suitable sentencing for the latter violations the court finds them guilty of.
It also appears in the case of aggravated offences and special aggravating offences for the relevant sections.
The Crimes Act 1900 (NSW) prescribes varying sentencing for the same crime depending on the circumstances or the degree. There are many reasons why an offence will be considered as having aggravating circumstances, including the following;
Manner, level of aggression, the victim's circumstances and so on.
Common aggravating circumstance for Break and Entry offences include;
The court considers having an arm that is intimidating and fearful of being an aggravating circumstance to a break and Entry offence (most).
If the court considers the offence to be committed in a group or any other large number that would possibly intimidate the victim, it is a reason for aggravation.
The court considers it aggravating that the offender intentionally harmed the victim because the processor was careless about their conduct, leading to physical harm.
It is a severe circumstance if the offender knows a person (or likely) and still commits the crime.
Other circumstance include;
Cases for special aggravation include;
Various actions or scenarios can constitute a Break and Enter offence in NSW. While the acts are not limited to these scenarios, they are commonly prosecuted as a "Break and Enter" charge.
Some of them include;
The onus is on the prosecution team to prove that the accused person committed such actions that constitute a "Break and Enter" offence under the law. The court will also require evidence that the accused person "intended/attempted" to commit an indictable crime.
The Police prosecuting the matter must prove that;
If the prosecution cannot prove that the accused person did any of this, the court cannot convict the accused of a “Break and Entry” offence and may downgrade or strike-out the offence. Also, it is advisable to seek the services of a lawyer related to such cases.
There are many arguments your legal counsel can make in your defence.
If you have been charged with a break and entry offence, your first action should be to attend the court hearing.
It is only common sense to maintain your side of the story if you are innocent of the matter.
If you were on the premise but did not break into the property or destroy any barrier, you can argue that it was not a break-in offence
If you did not commit an indictable crime or argue that it was only a break in offence, the court will review the matter and sentence you accordingly.
The accused person can argue that they were pursued to that property or entered the premises to escape some form of danger.
The law generally classifies an offence as being a violation/simple offence (summary offences) or being serious (indictable offence). Offences treated as indictable offences usually have severe consequences and are heard in higher courts.
Some example of indictable offence includes;
For this section, a building is an inhabited or private structure. However, it does not matter that a person was there at the time of the Break and Enter offence.
A premise includes any publicly controlled property, municipality, offices or other properties with restricted access.
The state of NSW considers such offence a table one offence and will proceed to a local court unless any party elects to hear the matter in a District or higher court. All matters heard in a Magistrates or Local Court don’t have sentencing greater than two years imprisonment.
However, if the court feels a higher court must prosecute the matter, it will refer it to a higher court (District court).
If an individual is found guilty of a Break and Enter offence in NSW, the offence will show up as a disclosable court outcome (DCO) on the results of their criminal background check.
Individuals can obtain a criminal history check online via the Australian National Character Check - ANCC® website.
Crimes Act 1900 (NSW) - https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040
Judicial Commission of New South Wales (Break and Enter Offences) - https://www.judcom.nsw.gov.au/publications/benchbks/sentencing/break_and_enter_offences.html
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