Section 112(1) of the Crimes Act 1900 states:
A person who:
- breaks and enters any dwelling house or other building and commits and serious indictable offence therein, or
- being in any dwelling house or other building commits and serious indictable offence therein and breaks out of the dwelling house or other building is guilty of an offence.
Section 112(2) states that:
A person is guilty under this subsection if the person commits an offence under subsection (1) in aggravation.
Section 112(3) states that:
A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation.
In addition to the above, there are specific provisions of the Crimes Act 1900 which make it offences to do the following:
- A person breaks into a dwelling with the intention to commit a serious indictable offence, but for whatever reason no indictable offence is committed.
- A person breaks and enters into a place of divine worship and commit a serious indictable offence, or intend to commit a serious indictable offence.
- A person breaks out after committing a serious indictable offence.
It is important to know that the indictable offence does not necessarily have to be stealing. It can include intimidation, sexually assault, or even murdering another person.
Due to the complicated nature of these ‘breaking’ offences, and the significant penalties that can follow should you be found guilty, it is highly recommended that you contact Josh McKenzie and James McLoughlin for experienced criminal legal representation. Josh and James can advise you on the offences, the processes involved in court proceedings, and also your rights and any defences.
What are the definitions I need to know?
Amongst other things, it’s important to know what each of the key terms of this section mean.
When the legislation talks about a ‘break,’ it is referring to an actual or constructive break. An actual break is where the security or the seal of the house is infringed, even though there may not be any actual or physical breaking of a particular object. To put it simply, by opening a closed door is sufficient to amount to a ‘break’. However, putting one’s hand through an open window would not be a break.
A constructive break is where entry is obtained by a fraudulent act, or a threat of the use of a key which the person is not entitled to use.
An ‘aggravating’ circumstance is one which is defined by Section 105A of the Crimes Act. This includes being armed with an offensive weapon or instrument. Alternatively, an offence is aggravated where the offence is committed with other people involved, or where corporal violence is used, or where intentional or reckless bodily harm is occasioned to a person. In addition, if the victims liberty was deprived during the unlawful act or where the person who commits an offence does so when it is known that a person or persons are home.
In terms of offences of ‘special aggravation,’ this means that the offence is committed in circumstances where an offender wounds, intentionally or recklessly inflicts grievous bodily harm (a really serious injury), and/or is armed with a dangerous weapon.
What is required to be proved?
The prosecution has to prove the charge beyond a reasonable doubt. If the offence is in one of the aggravated forms then the prosecution must prove those offences as well. It is not for the person charged with an offence to prove anything. At McKenzie McLoughlin Law, our lawyers feel very strongly about this fact.
If a person pleads not guilty to an offence of break and entering, then a brief of evidence will be served. This brief of evidence will include the evidence the Police seek to rely on to prove their case. Careful review of the brief by our lawyers will allow them to give a person proper advice on the case against them and allow them to choose whether to maintain a plea of not guilty or change the plea to guilty. If a plea of not guilty is confirmed, then a hearing date will be set to hear the evidence at Court.
At the hearing, the onus of proving the case rests with the prosecution ‘beyond a reasonable doubt.’ As former prosecutors themselves, Josh and James are outstanding court advocates and will fight hard to get the best result. If you are charged with any offence, including one that relates to stealing, contact Josh and James at McKenzie McLoughlin Law for tremendous legal representation.
Are there any defences available?
There are a number of defences that can be raised in relation to an allegation of break and entering. These can include:
- Wrongfully accusing the person (i.e. you are not the person who committed the crime)
If the matter is to be defended then this will require calculated and thorough preparation. It is of significant importance that when choosing a lawyer, a person is aware of their lawyers criminal law experience. All too often, a person is charged with an offence and does not research who is going to represent them. A criminal lawyer like Josh or James will carefully approach the evidence and implement strategies to get the best outcome for you.