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Trespass and Break and Enter (NSW)

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

In New South Wales there is a range of offences relating to trespass and break and enter ranging from relatively trivial offences to serious crimes. Offences relating to trespass are governed by the Inclosed Lands Protection Act 1901, while break and enter offences are governed by the Crimes Act 1900.

Trespass

If a person comes onto your property for a lawful purpose, such as delivering mail or paying you a visit, they are not breaking the law. However, if you ask a person to leave a property where you are the owner or occupier, they must do so. If they do not leave after being asked, they are committing an offence under the Inclosed Lands Protection Act 1901.

Section 4 of the Inclosed Lands Protection Act makes it an offence to enter inclosed lands without permission. This offence is punishable by a fine of up to five penalty units (or 10 penalty units if the land is prescribed premises, such as a hospital or school).

Section 4A of the act imposes steeper penalties for remaining on land after a direction to leave by the owner or occupier or the person apparently in control of the land where the offender behaves offensively whilst remaining on the land (Penalty 20 penalty units where the land is a prescribed premise and 10 penalty units in all other cases).

The Inclosed Lands Protection Act stipulates that any civil action taken in relation to a trespass under the act must be commenced within two months of the act being committed.

Break and enter offences

Division 4 of the Crimes Act 1900 contains a number of break and enter offences.

Break and enter with intent to murder

Under Section 10 of the Crimes Act 1900, it is a crime punishable by 25 years imprisonment to enter a dwelling house and commit an assault with intent to murder or inflict grievous bodily harm.

Enter dwelling house with intent

Section 111 makes it an offence to enter a dwelling house with the intention of committing an indictable offence. This offence is punishable by a maximum of ten years imprisonment.

Enter dwelling house and commit offence

Section 112 makes it an offence to enter a dwelling house and commit a serious indictable offence. The maximum penalty for this is imprisonment for 14 years.

Enter dwelling house with intent

Section 113 makes it an offence to enter a dwelling house with intent to commit a serious indictable offence. This is punishable with a maximum of 14 years imprisonment. Aggravated and specially aggravated versions of this offence also exist, with corresponding longer penalties.

Circumstances of aggravation

Circumstances of aggravation include:

  • Where the offender is armed with a weapon;
  • Where the offender is in company with one or more other persons;
  • Where the offender uses violence;
  • Where the offender inflicts bodily harm (intentionally or recklessly);
  • Where the offender deprives a person of their liberty;
  • Where there is one or more persons present in the place where the offence is committed and the offenders knows there are persons present.

Circumstances of special aggravation include:

  • Where the offender intentionally wounds a person;
  • Where the offender inflicts grievous bodily harm on a person;
  • Where the offender is armed with a dangerous weapon.

These circumstances can occur or exist immediately before, during or after the offence.

Entry does not have to be unlawful

It is worth noting that break and enter offences and offences of ‘entering with intent’ in New South Wales do not require the offender to have entered as a trespasser. A person can be found guilty of these offences even if they originally entered the dwelling house or building with the consent of the occupier.

If you need legal advice in a criminal matter or in any other legal matter, please contact Go To Court Lawyers.

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