Law on Break, Enter and Commit Serious Indictable Offences in NSW

By Sahar Adatia and Jimmy Singh.

Australia is burning amid one of the country’s worst fire seasons on record and against the backdrop of this devastation, never before has human suffering been so unprecedented.

The fires have now killed at least 25 people and destroyed nearly 2,000 homes, while the blazes have transformed skies into ominous shades of orange and left the breathing air as bad as smoking over 30 cigarettes a day.

If this destruction wasn’t bad enough, then it might come as a shock to learn that opportunistic thieves are now emerging looking to profit from NSWs bushfire victims.

In a case that can only be described as unfathomable, last week, Bec Winter was forced to flee her home on horseback when fire came perilously close to her home at Rosedale on NSW’s Far South Coast – only to return to her property to find it had been broken into and robbed.

To make matters even more depraved, when Ms Winer came back a second time to her home with a forensic police officer, she discovered her home had been looted by heartless thieves once again.

The Moment Ms Winter Discovered her Home Looted

On New Year’s Eve, when conditions in NSW’s South Coast deteriorated, Ms Winter and her son Riley, from Moruya, were forced to evacuate their property.

The pair took off on the back of a rescue horse named Charmer, trembling and frightened for what was to come.

“I saddled the horse up immediately, shaking like you wouldn’t believe … it was just unbelievable,” Ms Winter said, who sells children’s clothing at a local market for a living.

When they returned to their home on 3 January 2020, they discovered their property had been pulled apart and trashed by robbers.

“We walked in to find the house totally ransacked,” Ms Winter said.

“I have no words.”

Distraught, her son Riley asked if he could swear, to which she responded, “Darling today you can.”

The thieves made off with mowers, a lead blower, chainsaws, the pump off her water tank, and even a bicycle Riley had just received as a Christmas present, all while the encircling bushland smouldered away.

How the Disgusting Incident Got Worse

The disgusting incident only became worse for Ms Winter and her son, however.

Seeking the help of a forensic police officer, when they returned to the home, they found the premises had been exploited by looters once again, this time with the robbers breaking inside.

Many of her personal belongings were stolen.

“They even came back for a second round and took more of my personal belongings which would mean nothing to them,” Ms Winter said.

“Honestly I just went, ‘there is not much more they can take.’

“Do they want our clothes as well?”

The looters also took the cashbox from Ms Winter’s home.

“They took my cashbox, but that is where I actually keep my EFTPOS receipts, so they wouldn’t have gotten anything,” Ms Winter said.

Indeed, the mother’s frustration was palpable, at a time when communities are coming together to support one another through the desolation.

“People are extremely angry … it is such a dog act to do in times of crisis where nobody is in their right headspace.

“We have all been affected in some way.”

The sickening incident came merely a day after police issued a stern warning to budding burglars targeting bushfire victims, after a teenager was allegedly caught thieving from a home that had been evacuated in the NSW Riverina region.

Law on Break, Enter and Commit Serious Indictable Offences in NSW

Under section 112 of the Crimes Act 1900 (NSW), it is an offence to break into a house or premises and steal property or carry out any other serious indictable offence.

It’s equally a crime to be inside a house or premises and commit a serious indictable offence such as larceny and then break out of the house or premises.

A “serious indictable offence” refers to any offence in NSW that carries with it  five years or more jail as its maximum penalty. This includes crimes such as larceny, sexual assault charges and assault occasioning bodily harm.

The maximum penalty a person can face for committing this crime is 14 years in jail.

However, if the offence is committed in circumstances of aggravation, a person guilty of this offence can face a maximum penalty of 20 years in jail. This offence also attracts a 5-years standard non-parole period.

If the offence takes place in circumstances of special aggravation, the maximum penalty jumps to 25 years in jail, with a 7-years standard non-parole period.

The standard non-parole period is the period of full-time custody before an offender is eligible for release on parole if the offence falls within the mid-range of objective criminality for offences of this type.

For this crime to be proven, the prosecution must prove that you broke into the premises, entered the premises and committed a serious indictable offence.

You do not have to necessarily physically break into a house or premises to be guilty of this crime. It won’t be considered a “break” unless you at least, for example, open a window, door or gate that’s unlocked, but closed.

It’s therefore not considered a “break” if you enter for example a door, window or gate that’s already opened.

Defences to the charge of break, enter and commit serious indictable offence can include:

• You were given authority to enter the residence or premises
• The door, window or gate you entered from was already opened and therefore didn’t require you to “break” into to enter.
• Duress or necessity

Call our friendly team of criminal lawyers based in Sydney for more information on this charge. We are available 24/7 and offer a free consultation.

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