Housebreaking Offences in New South Wales

In New South Wales, there is a range of offences relating to housebreaking contained in the Crimes Act 1900. These offences are the equivalent of burglary offences in other states and represent some of the most serious property crimes in NSW criminal law. This page deals with housebreaking offences in New South Wales, including their penalties, definitions, and legal procedures.

Legislation

Offences involving housebreaking are contained in sections 109 to 113 of the Crimes Act. They carry maximum penalties of between 10 and 25 years imprisonment. The maximum penalty that applies to each of these offences in its simple, aggravated and specially aggravated form is set out in the table below.

Specific Housebreaking Provisions

The key sections of the Crimes Act dealing with housebreaking offences include:

• Section 109 - Breaking out of dwelling house after committing serious indictable offence
• Section 111 - Entering dwelling house with intent to commit serious indictable offence
• Section 112 - Breaking into any house and committing serious indictable offence
• Section 113 - Entering any house with intent to commit serious indictable offence

These provisions work together to cover various scenarios involving unlawful entry into residential and commercial properties with criminal intent.

What is 'breaking'?

To be found guilty of an offence involving breaking into or out of a house, an accused must have broken some part of the house, such as a gate, lock, window, screen or door, in order to enter or exit the house.

Elements of Breaking

The concept of "breaking" in NSW law extends beyond physical force. It can include opening an unlocked door or window, lifting a latch, or even entering through an opening that was created by someone else. The breaking must be done without permission and with the intent to enter unlawfully. Courts have established that minimal force is required - even pushing open a partially closed door can constitute breaking under NSW criminal law.

Constructive Breaking

NSW courts also recognize "constructive breaking," which occurs when a person gains entry through fraud, threats, or by conspiring with someone inside the premises. This ensures that the law captures various methods of unlawful entry beyond just physical force.

What is a serious indictable offence?

In New South Wales, a serious indictable offence is any offence that carries a maximum penalty of more than five years imprisonment, including larceny, assault occasioning actual bodily harm and sexual assault.

Common Serious Indictable Offences in Housebreaking Cases

The most frequently encountered serious indictable offences in housebreaking cases include stealing (larceny), malicious damage to property, assault, and drug-related offences. The prosecution must prove both the unlawful entry and the commission of, or intent to commit, the serious indictable offence.

Aggravated offences

An offence is aggravated and attracts a longer penalty if it involves any of the following circumstances:

• The offender is armed with an offensive weapon or instrument;
• The offender is in company with another person;
• The offender uses corporal violence;
• The offender intentionally or recklessly inflicts actual bodily harm on a person;
• The offender deprives a person of their liberty
• The offender knows that a person is present in the place where the offence is to be committed.

Consequences of Aggravation

Aggravated housebreaking offences carry significantly higher maximum penalties, reflecting the increased seriousness and potential harm to victims. Courts consider these aggravating factors during sentencing, often resulting in custodial sentences even for first-time offenders. The presence of weapons, violence, or knowledge that someone is home transforms a property crime into a serious threat to personal safety.

Specially aggravated offences

An offence is specially aggravated if it involves any of the following circumstances:

• The offender intentionally wounded or inflicted grievous bodily harm on a person;
• The offender inflicts grievous bodily harm on a person and is reckless as to causing actual bodily harm;
• The offender is armed with a dangerous weapon.

Maximum Penalties for Specially Aggravated Offences

Specially aggravated housebreaking offences carry the highest penalties under NSW law, with maximum sentences reaching 25 years imprisonment. These severe penalties reflect the gravity of offences involving serious violence or dangerous weapons during the commission of housebreaking.

Defences to Housebreaking Charges

Common Legal Defences

Several defences may be available to those charged with housebreaking offences in NSW. These include lack of intent to commit a serious indictable offence, lawful authority or permission to enter, necessity, duress, and mental illness or cognitive impairment. The availability and strength of these defences depend on the specific circumstances of each case.

Burden of Proof

The prosecution bears the burden of proving all elements of the offence beyond reasonable doubt. This includes proving unlawful entry, breaking (where applicable), and either the commission of or intent to commit a serious indictable offence. If any element cannot be proven, the charges should not succeed.

Sentencing Considerations

Factors Affecting Sentence

When sentencing for housebreaking offences, NSW courts consider various factors including the value of property stolen or damaged, the level of planning involved, the impact on victims, the offender's criminal history, and their personal circumstances. Home invasions typically receive more severe sentences than break-ins of unoccupied commercial premises.

Alternative Sentencing Options

Depending on the circumstances and the offender's background, courts may consider alternatives to full-time imprisonment, such as intensive correction orders, community service orders, or conditional release orders. However, serious housebreaking offences often result in custodial sentences.

Jurisdiction

Some housebreaking offences are Table 1 offences. Table 1 offences are generally dealt with in the lower court (Local Court and Children's Court). However, the prosecutor or the accused may elect to have the matter committed to a higher court. In the lower courts, the maximum penalty that can be imposed for a single offence is two years imprisonment.

The following are Table 1 offences:

• Breaking out of dwelling house, after committing or entering with intent to commit, a serious indictable offence (under section 109) where the serious indictable offence is stealing or intentionally or recklessly destroying property and the value of the property involved does not exceed $60,000
• Entering dwelling house with intent to commit serious indictable offence (under section 111 or section 113) where the intended offence is stealing or damaging property.
• Breaking into a house and committing a serious indictable offence (under section 112) where the off
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  Frequently Asked Questions

  What is a serious indictable offence in relation to housebreaking charges?

  A serious indictable offence in New South Wales is any offence that carries a maximum penalty of imprisonment for 5 years or more. In housebreaking cases, this means offences like theft, assault, sexual assault, or property damage that the accused intended to commit or actually committed while unlawfully entering the premises. The severity of the intended crime significantly impacts the charges and potential penalties faced.

  How do NSW housebreaking laws differ from burglary laws in other Australian states?

  NSW uses the term 'housebreaking' instead of 'burglary' found in other Australian states, though the offences are essentially equivalent. NSW's Crimes Act 1900 specifically categorizes these offences into simple, aggravated, and specially aggravated forms with maximum penalties ranging from 10 to 25 years imprisonment. The NSW legislation also distinguishes between breaking into dwelling houses versus any house, with different penalty structures for each category.

  How much does it cost to get legal advice for housebreaking charges in NSW?

  Go To Court Lawyers offers a fixed consultation fee of $295 for criminal law matters including housebreaking charges. This initial consultation allows you to discuss your case, understand the charges against you, and receive professional legal advice about your options. Given that housebreaking offences carry serious penalties of up to 25 years imprisonment, obtaining early legal representation is crucial for protecting your rights and achieving the best possible outcome.

  What can a criminal lawyer do to help with housebreaking charges?

  A criminal lawyer can examine the prosecution evidence, challenge whether the elements of breaking or entering were actually proven, and assess if police procedures were followed correctly. They can negotiate with prosecutors for reduced charges, argue for alternative penalties like community service, and represent you in court proceedings. Lawyers can also explore defenses such as lawful authority, necessity, or challenging the intent to commit a serious indictable offence.

  Are there urgent time limits I need to know about for housebreaking charges in NSW?

  Yes, there are critical time limits that require immediate attention. You must appear in court on your scheduled mention date or a warrant may be issued for your arrest. If granted bail, you must comply with all conditions strictly. Early legal representation is crucial as your lawyer needs time to review police evidence, interview witnesses, and prepare your defense strategy before your court appearances to achieve the best possible outcome.

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