Charged with Break and Enter in NSW: What the Charge Actually Means

Break and enter offences in NSW are found in Division 4 of Part 4 of the Crimes Act 1900, primarily in sections 109 to 117. Despite the name, you do not need to have physically broken anything. "Breaking" in the legal sense includes opening a closed door or window — even if it is unlocked. The offence requires entering a dwelling, building, or other structure with intent to commit a serious indictable offence inside, most commonly theft.

Not all break and enter charges carry the same maximum penalty. Break, enter and steal under section 112 carries a maximum of 14 years. Where the offence is committed in company — meaning with one or more others — the maximum rises to 20 years. Where it is aggravated, for example involving an offensive weapon, actual violence, or occurring at night, the maximum can reach 25 years.

Where a charge is heard also matters enormously. Some less serious variants can be dealt with summarily in the Local Court, capping the maximum at two years. Most break and enter charges are indictable matters that can be committed to the District Court.

Lack of intent: the prosecution must prove you entered with intent to commit a serious offence inside. If that intent cannot be established, the charge cannot be sustained. Claim of right: if you had a genuine belief you had a right to be in the property or to take property inside, this may provide a defence. Identification: where the prosecution relies on circumstantial or identification evidence, challenging the quality of that evidence is often central to the defence.

Courts consider the degree of planning, whether it was a dwelling house, whether any violence or threats were involved, the value of property taken or damaged, and prior record. A first offender who committed a relatively unsophisticated break and enter — with strong personal circumstances, an early guilty plea, and genuine remorse — is in a meaningfully different position to someone with relevant prior convictions. The difference can be between a community-based sentence and actual imprisonment.