A person who breaks and enters any dwelling is committing an offence
This article aims to provide an overview on how the offence of breaking, entering and stealing is committed, the different terms involved, the law applicable that defined and punished the said offence, the defences available to the accused, and the penalty imposed upon the convicted offender.
The following discussion talks about an offence punishable in New South Wales under the Crimes Act 1900. It is generally a trespass of the sanctity of homes; an offence that usually breach of the tranquillity of the night; and a transgression of the security of a property. The offence in this article is one of the most common offences committed in New South Wales.
The offence of breaking, entering and stealing is an offence under the category of stealing and other offences of the Crimes Act 1900. It is usually committed in the dwelling-house. In NSW, act of breaking and entering is most of the time for the purpose of stealing from a dwelling-house. For better understanding of the offence, a brief discussion of some important terms should be made.
It is the opening through the application of force in order to gain entrance. It presupposes that what has been opened is previously closed. In Stanford v R  NSWCCA 370, Simpson J, relying on Walker (1978) 19 SASR 532 at 534 and R v Smith (1827) 1 Mood 178, held that there is no “breaking” involved in further opening an already opened window: . Thus, the act of breaking is not committed if the one gained entrance using an already opened door or window.
It is the coming or going in through an opening. In here, the law does not distinguish whether the one used to enter was previously closed or that there was force used in order to enter. What is important is that the offender entered the opening.
It is the unlawfully taking of something, usually personal property, with intent to gain and without the consent of the owner. The act of stealing is completed as soon as the offender gains control over the property. It does not matter whether or not the offender had the opportunity to dispose the property that was the subject of the stealing.
A dwelling-house is any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied, or a boat or vehicle in or on which any person resides, and any building or other structure within the same curtilage as a dwelling-house, and occupied therewith or whose use is ancillary to the occupation of the dwelling-house. (Section 4, Crimes Act 1900) The law extended the definition of dwelling-house as it includes a building or other structure.
The Crimes Act 1900 (NSW) punishes the offence of breaking, entering and stealing. A person who breaks and enters any dwelling-house or other building with intent to commit any serious indictable offence therein is guilty of an offence.
It should be noted that a dwelling-house is not only the subject of the offence. For purposes of committing the offence, a building is included in the concept of a dwelling-house.
The offence of breaking, entering and stealing always involves a trespass of the dwelling-house or a building. A person shall not liable for this offence if he or she had justifiable reason to break or enter. The accused may allege in his defence that there was a threat on his life and the only way to get away from it was to break or enter a dwelling-house for security.
As indicated by the NSW Bureau of Crime Statistics and Research (2012), “the most common penalty imposed on an offender convicted of break and enter was a prison sentence. Prison penalties were imposed on 64 per cent of offenders convicted of an aggravated break and enter offence and 49 per cent of offenders convicted of a non-aggravated break and enter offence.”
The maximum penalty provided by the law varies depending on the presence of any of the circumstances provided by the law. The convicted offender shall be liable for 10 years of imprisonment if it was committed without any aggravating circumstance.
However, a 14 year of imprisonment shall be imposed if any circumstance of aggravation is present and 20 years of imprisonment if there is any circumstance of aggravation. The court is not also prohibited from imposing any other penalty when it deemed proper.
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Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.