Criminal law
Break and enter, and trespass
These charges run from a fine for walking onto someone’s land through to a twenty five year maximum. Where yours sits depends on whether you broke in, whether you intended to commit an offence, whether you actually committed one, and whether anything made it aggravated. Full-time custody is a real prospect on the serious end even for a person with no record.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594.
The ladder of offences
These offences step up sharply, and which rung you are on is often arguable. Getting a charge down one step can change the maximum by years and change which court hears it.
| Offence | What it requires | Maximum penalty |
|---|---|---|
| Unlawful entry on inclosed lands | Entering enclosed land without permission. No breaking, no intent to offend | A fine, higher for prescribed premises such as a school, hospital, childcare centre or nursing home |
| Aggravated unlawful entry | Trespass with an aggravating feature, such as interfering with a business or creating a serious safety risk | A substantially higher fine |
| Enter a dwelling with intent | Entering, without any breaking, intending to commit a serious indictable offence | 10 years |
| Break and enter with intent | Breaking in, intending to commit a serious indictable offence, whether or not you did | 10 years |
| Break, enter and commit a serious indictable offence | Breaking in and actually committing the offence, usually stealing | 14 years |
| Aggravated | Any of the above with a circumstance of aggravation | 20 years, with a standard non-parole period of 5 years |
| Specially aggravated | An aggravated offence with a circumstance of special aggravation | 25 years, with a standard non-parole period of 7 years |
Which court, and why it matters enormously. Break, enter and commit a serious indictable offence can be dealt with in the Local Court unless the prosecution or the defence elects to have it heard on indictment. If it stays in the Local Court, the most a magistrate can impose is two years, whatever the maximum for the offence. Aggravated and specially aggravated versions are dealt with in the District Court, where the full maximum applies. Whether a matter stays in the Local Court is therefore one of the most consequential things that happens in these proceedings, and it is worth having someone dealing with the prosecutor about it early.
What the prosecution has to prove
Breaking
Breaking does not require damage. It means breaking the seal of the premises, and opening a closed door, window or gate is enough even if it was unlocked. Reaching through an already open window may not be. Breaking out of a building after committing an offence inside can also amount to breaking.
Entering
Any part of the body crossing the threshold is enough, and so is inserting an instrument for the purpose of committing the offence.
A serious indictable offence
Any offence punishable by imprisonment for five years or more. In practice it is usually stealing, but it also covers assault occasioning actual bodily harm, malicious damage of sufficient value, and others.
Intent
For the “with intent” offences, the intention has to exist at the time of entry. Someone who enters for another reason and forms the intention afterwards has not committed that offence, though they may have committed something else. This is a real and frequently available argument.
Aggravation and special aggravation
These are defined, closed lists. They are not general descriptions of seriousness, and whether one applies is often the difference between a fourteen year maximum and a twenty five year one.
Circumstances of aggravation
- Armed with an offensive weapon or instrument
- In the company of another person or persons
- Using corporal violence on any person
- Intentionally or recklessly inflicting actual bodily harm
- Depriving any person of their liberty
- Knowing that there is a person, or persons, in the dwelling or building
Circumstances of special aggravation
- Intentionally wounding or intentionally inflicting grievous bodily harm on any person
- Inflicting grievous bodily harm while reckless as to causing actual bodily harm
- Being armed with a dangerous weapon
Two of these are worth particular attention. In company catches anyone who did this with another person, which is very common and which lifts the maximum to twenty years by itself. Knowing someone was inside is frequently asserted where the house was occupied, and whether you actually knew is a question of evidence rather than assumption.
Defences and issues
It was not you
Identification is the central issue in most of these matters, and the evidence is usually circumstantial: fingerprints, DNA, CCTV of poor quality, phone location data, or property found later. Each has weaknesses worth testing, and the presence of forensic material does not by itself prove when or how it got there.
No intent at entry
Where you entered for some other reason and the intention, if any, came later, the charge as laid is not made out.
No breaking
Entry through a door or window that was already open is not breaking, which may take the matter to a less serious charge.
Consent or claim of right
You had permission to be there, or an honest belief you were entitled to be there or to take the property. A genuine belief in a legal right defeats the dishonesty element even if the belief was mistaken.
No aggravating circumstance
Not a defence to the underlying charge, but frequently the most valuable argument available, because it moves the matter down a tier and changes the sentencing range entirely.
Duress and necessity
Where you acted under threat, or entered in genuine emergency.
Related charges you may face instead or as well include being found in a building or enclosed land without lawful excuse, possessing implements capable of being used to break in, and goods in custody where property is found on you. Those are materially less serious and are sometimes the right resolution. More on larceny and property offences.
How the courts approach these matters
We will be direct about this. Break and enter is treated seriously, full-time custody is a genuine prospect at the higher end even without a record, and there is a guideline judgment directing courts to particular factors when assessing seriousness. Those include whether the premises were occupied, whether the offence was planned, whether a weapon or violence was involved, the value of what was taken, the damage caused and the effect on the occupants.
What actually moves the outcome:
- Which charge, and which tier. The single biggest lever, and the reason not to plead before someone has looked at whether the aggravating circumstance is genuinely made out
- Whether the matter stays in the Local Court, where the ceiling is two years
- An early plea, where a plea is appropriate, because the discount is significant
- Addressing the cause. A very large proportion of these offences are driven by drug dependency. Evidence of genuine engagement with treatment, started early and documented, carries real weight
- Restitution, where it can be made
- Whether the facts are agreed, because the court sentences on the fact sheet
Where a mental health impairment or cognitive impairment is involved, and the matter is in the Local Court, it may be able to be dealt with by way of a treatment plan rather than a conviction. That requires properly prepared evidence.
Sentencing options in NSW
Get advice before pleading guilty to anything. The court can impose any of the following, and a well-prepared sentencing is what produces the best available outcome.
Dismissal without conviction
No conviction recorded and no further penalty. The matter is finalised as you leave court.
Conditional release order
A bond, available with or without a conviction, supervised or unsupervised. The standard conditions are to commit no further offence and to appear if called on, and further conditions can include rehabilitation, abstinence, curfews and non-association or place restriction orders.
Conviction with no other penalty
A conviction is recorded but nothing further is imposed.
Fine
Can be imposed alone or with a bond, and is a conviction. Usually payable within 28 days, though the registry can extend the time or arrange a plan. Non-payment leads to enforcement, which can include licence and registration suspension.
Community correction order
More serious than a conditional release order, for up to three years, supervised or unsupervised, with conditions that can include community service, curfews, abstinence and rehabilitation.
Intensive correction order
A sentence of imprisonment served in the community under strict supervision, which can include home detention, electronic monitoring and curfews. It is not available for some offences. Breaches go to the State Parole Authority rather than the court and often result in serving the balance in custody.
A word on written pleas of guilty. Police sometimes hand you a form allowing you to plead guilty in writing without attending. It looks convenient and it is usually a mistake. On a written plea the magistrate has only the police fact sheet and your record, and knows nothing about you, your circumstances or anything mitigating. The penalty is often heavier as a result. It is also important that you agree with what the fact sheet says before it is tendered, because the court sentences on that document.
Trespass and inclosed lands
At the other end of the scale. Unlawful entry on inclosed lands is committed by entering land without the permission of the owner or occupier, where the land is enclosed by a fence, wall or other structure, or bounded by something that marks the boundary such as a river or cliff. It applies to residential, commercial and public land, and it does not matter whether you walked, drove or otherwise made your way on.
It is a fine-only offence in the ordinary case, with a higher maximum where the land is prescribed premises, meaning a school, childcare service, hospital or nursing home. An aggravated form carries a substantially higher fine and applies where there is an aggravating feature, such as interfering with the conduct of a business, doing anything that creates a serious safety risk, or setting a trap.
Defences
- You had the permission of the owner or occupier
- You had a reasonable excuse or lawful authority to be there
- You believed on reasonable grounds that you were entitled to be there
- Necessity, such as entering to escape danger or to assist someone
- The land was not inclosed, or the boundary was not marked in a way the offence requires
A charge of trespass is often the appropriate resolution of an allegation that started as something more serious, and it is worth knowing that before a plea is entered to anything.
Common questions
The door was unlocked. Is that still breaking?
Usually yes. Breaking means breaking the seal of the premises, not causing damage, so opening a closed but unlocked door or window is enough. Entering through a door or window that was already open is different, and that distinction can move the charge down a tier.
I did not take anything. Does that help?
It changes the charge. Breaking in intending to commit an offence, without committing one, carries ten years rather than fourteen. It does not make the matter trivial, but the distinction is real and worth making sure the charge reflects.
There were two of us. Does that matter?
A great deal. Being in company is a circumstance of aggravation on its own, which lifts the maximum from fourteen years to twenty and brings a standard non-parole period into play. It is one of the most commonly alleged aggravating features and one of the most consequential.
Will I go to gaol?
It is a real prospect, and we will not tell you otherwise. New South Wales imposes full-time custody for these offences at a high rate, particularly in the District Court. What makes the difference is which charge you face, whether the matter stays in the Local Court, and how well the sentencing is prepared. Plenty of matters resolve without custody, but nobody should approach one assuming that.
My fingerprints were found there. Is that the end of it?
No. Forensic evidence shows that material was present, not when or how it got there, and there is frequently an innocent explanation. It also has to be properly collected, continuity established and the analysis sound. It is evidence to be examined, not conceded.
Can it stay in the Local Court?
For break, enter and commit a serious indictable offence, yes, unless the prosecution or defence elects to take it to the District Court. That keeps the ceiling at two years. For the aggravated and specially aggravated versions it goes to the District Court. This is one of the first things we assess.
It was drug related. Does that make it worse?
Drug dependency does not excuse an offence, and it is not a strong mitigating factor by itself. What does carry weight is genuine, documented engagement with treatment, started as early as possible rather than in the week before sentencing. If that is your situation, start now and tell us.
What should I bring to the first appointment?
The court attendance notice, the police fact sheet, any bail conditions, and the names of anyone else charged. If treatment or counselling is relevant, bring whatever you have. If you have none of it, come anyway.
These charges are worth fighting properly
The gap between the tiers is measured in years, and whether an aggravating circumstance is actually made out is regularly arguable. Get advice before you plead to anything, and before the question of which court hears it is decided.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153. We appear in Local Courts across Sydney and in the District Court. Courts we appear in.