Break and Enter Offences, Penalties and Defences in NSW

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Poppy Morandin.

A 19-year-old man has been charged as part of an investigation into a criminal syndicate involved in the theft of vehicles across Sydney.

In November 2020, detectives from the Financial Crime Squad’s Motor Unit established ‘Strike Force Swete’ to investigate alleged criminal syndicates involved in break-in offences across Sydney.

During this investigation, around 14 men, aged between 17 and 52, have been charged over their alleged involvement in various syndicates.

It has resulted in 242 charges relating to the theft of vehicles and break and enter of homes, across Sydney which remain before the courts.

In addition, detectives have recovered and seized 14 stolen vehicles.

In late September, following further inquiries, police stopped a Holden Commodore travelling in Doonside just before 6:30 in the morning.

The 19-year-old driver was arrested and taken to Mount Druitt Police Station.

His vehicle, a mobile phone and other items were seized for forensic examination.

A search warrant was subsequently executed at a residence in Doonside, where officers seized steroids, two motorcycles and more than $3,000 cash.

One of the motorcycles had allegedly been reported stolen, whilst the other appeared to be rebirthed.

The man was charged with 11 offences including four counts of aggravated break and enter commit serious indictable offence, four counts of steal motor vehicle and participate criminal group contribute criminal activity.

Police will allege that the man was involved in a criminal syndicate responsible for a number of break and enter offences across the Sydney metropolitan area.

The Doonside man was refused bail by the court, to be remanded into custody until his next court date on Wednesday 22 December 2021.

Table Of Contents

Break and Enter Offences, Penalties and Defences in NSW

Pursuant to section 112(1) of the Crimes Act 1900 (NSW), it is an offence to break and enter any dwelling-house or other building and commit any serious indictable offence therein.

A serious indictable offence is an offence carrying a term of imprisonment of five years or more and includes assault occasioning actual bodily harm, wounding, and sexual assault.

A maximum penalty of 14 years imprisonment is applicable if dealt with in the District Court, for the s112 offence.

However, the offence will only be dealt with in the District Court if the prosecutor or the person charged elects to do so.

If the matter is not ‘elected’ it will remain in the Local Court, with a maximum penalty of 2 years imprisonment.

If the above act is done in circumstances of ‘aggravation’ (s112(2)), the maximum penalty applicable rises to 20 years imprisonment.

Circumstances of aggravation include if the alleged offender:

Was armed with an offensive weapon, or instrument,
Was in the company of another person or persons,
Used corporal violence on any person,
Intentionally or recklessly inflicted actual bodily harm on any person,
Deprived any person of their liberty,
Knew that there was a person, or persons, in the place where the offence is alleged to be committed.

However, if the offence is committed in circumstances of ‘special’ aggravation (s112(3)), a maximum penalty of 25 years is applicable.

Such circumstances are namely, if the alleged offender:

intentionally wounded or intentionally inflicted grievous bodily harm on any person,
inflicted grievous bodily harm on any person and was reckless as to causing actual bodily harm to that or any other person,
was armed with a dangerous weapon.

New South Wales retains the highest Full Time Imprisonment rate for break and enter/burglary offences (77%), across Australia, if the offence is dealt with in the District Court.

In determining a sentence for offenders found guilty of this offence, the court will consider factors including the level of professional planning, organisation, and execution, and whether elderly, sick or disabled persons were on the premises.

Other relevant factors include the value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value, and whether force was used or threatened.

Available defences to a break and enter offence include duress, necessity, and Mental illness defences.

Questions on this law? speak to one of our criminal lawyers Sydney based today.

Published on 09/10/2021