The Penalties for Break and Enter and Commit Serious Indictable Offence in NSW

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By Sahar Adatia and Jimmy Singh.

Coming home to find your house has been broken into is a frightening experience.

Not only is it a violation of your space and possessions, but it’s an encounter that can also take some time to recover from emotionally.

But imagine if your home was broken into while you were in it, leaving you ransacked right before your very eyes.

This was the terrifying encounter that a 95-year-old Adelaide war widow lived through when she awoke to two home invaders going through the drawers in the bedroom of her Glenside retirement village unit.

The home invaders managed to flee before they could get caught.

How the Break and Enter Incident at Pineview Retirement Village Unfolded

It is reported that in the early hours of 11 October 2019, the elderly woman, known as Di, heard two men in her bedroom after they broke into her retirement village unit on Conyngham Street in Adelaide’s south-east.

At around 1:30am, the two men began ransacking her bedroom, at which point the war widow decided to bravely confront her intruders.

Startled, the pair grabbed her handbag and jewellery before bolting.

After seizing her valuables, the men tossed the bag away next to a nearby fence.

Forensic police were able to recover the bag and search the unit for evidence, which showed the intruders may have broken in through a window.

While a dog searched the Glenside area, police failed to find the suspects and the investigation continues.

Neighbours at Pineview Retirement Village Horrified by Cowardly Home Invasion

Hearing of the home invasion, Di’s neighbours at the retirement said they were horrified by the cowardly incident.

“It’s almost unbelievable isn’t it, because their target is a group of vulnerable people,” village manager Gwenllian Brooking said.

Meanwhile, Di’s son, Andrew, said the experience was disturbing.

“Generally, everybody in the village looks after each other, but when it happens in the night it’s a bit disturbing,” he said.

Elderly Woman Described as “Extremely Brave” for Confronting the Men

Meanwhile, speaking to ABC News, Pineview Village executive officer, Lucille Tribelhorn, labelled the woman “extremely brave” for confronting the two reprehensible home invaders.

“She just confronted them nicely and asked them what they were doing in her unit,” Ms Tribelhorn said.

“Basically, she told them that they are … very cheeky to do this.

“For somebody in their 90s, she’s extremely brave.”

Ms Tribelhorn also said the men escaped the unit through the laundry, jumping over two fences afterwards to get away.

While Di was fine after the ordeal, the village executive officer also advised management would look into increasing security for all residents.

“I think we have to become more security conscious because I think times are changing,” she said.

“I suppose we could look at actually having more security lighting that might deter people.”

Ms Tribelhorn also expressed looking into having night patrols at the retirement village.

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The Penalties for Break and Enter and Commit Serious Indictable Offence in NSW

The Penalties for Break and Enter and Commit Serious Indictable Offence in NSW

It’s a crime in NSW to break into someone’s home or building to carry out what the law refers to as a ‘serious indictable offence’, which is includes any crime that carries a max penalty of at least 5-years prison sentence.

A common serious indictable offence for such charges includes a charge of larceny, which carries a maximum penalty of up to 5-years imprisonment.

Breaking and entering into someone’s home and committing a serious indictable offence in NSW attracts a penalty of up to 14-years imprisonment (section 112 Crimes Act 1900 (NSW)).

Furthermore, where this offence is committed in ‘circumstances of aggravation’, the maximum penalty is 20-years imprisonment, with a 5-year standard non-parole period (section 112(2)).

A standard non-parole period represents the mandatory minimum full-time prison time required before a person is eligible for release on parole where the offence falls in the middle range of objective seriousness.

The standard non-parole period is not always applied in cases where the offence falls in the middle range of objective seriousness. It’s not mandatory and applies only as a guide for the Courts.

Where the offence of break and enter, committing a serious indictable offence occurs in ‘circumstances of special aggravation’ the max penalty is 25-years imprisonment, with a with a 7-year standard non-parole period (section 112(3)).

To be guilty of break and enter and commit serious indictable offence, the police will be required to prove that you broke and entered into a house or premises and committed a serious indictable offence.

In order to commit this offence, you do not have to physically break into a house. You can be charged with a break and enter if you merely enter through a door, window or gate that is closed but unlocked.

That said, you will not be found guilty of an offence of break and enter if you simply enter through a door, window or gate that is open.

The offence of “break, enter and steal” is a common situation that reflects a break and enter while committing a serious indictable offence.

While ‘entering’ a house or premises is self-explanatory, the law says that ‘breaking’ here can include opening an unlocked door provided the door was closed or un-latching a door or window.

What does ‘circumstances of aggravation’ mean? This is expressed in section 105A Crimes Act 1900 (NSW) as including:

Where the accused person was armed with an offensive weapon; or
Where the accused person was in company of another person(s); or
Where the accused person used corporal violence on any person; or
Where the accused person recklessly or intentionally inflicted actual bodily harm on a person; or
Where the accused person deprived a person of his/her liberty; or
Where the accused person knew that there is a person(s) in the place the offence is alleged to have been committed in.

What does ‘circumstances of special aggravation’ mean? This is also outlined in section 105A, and includes:

Where the accused person intentionally wounds or inflicts grievous bodily harm on a person; or
Where the accused person inflicted grievous bodily harm on a person and when committing the act that caused this, he/she had realised the possibility of causing the person actual bodily harm at the time; or
Where the accused person was armed with a dangerous weapon.

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