The Crime of Break, Enter and Steal in NSW

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By Paul Gregoire and Ugur Nedim

Lake Macquarie police are currently searching for a Caucasian man of about 175 cm tall. The man in his 40s – who’s of medium build and has brown hair – ran from police, when they startled him at a building site in Cardiff on Sunday morning.

The local officers were responding to a 6.30 am call about a trespass incident on 21 July. On arrival at the Macquarie Road construction site, they located a number of tools and building materials that had been stacked beside a black Suzuki four-wheel drive.

Soon after they found the vehicle, police came across the suspect, who immediately took off. The officers followed in pursuit for a short while, before losing sight of the alleged offender, who was wearing a blue jacket and grey beanie.

Police established a perimeter around the local vicinity and sent in the NSW Dog Unit and PolAir to search the area. The break, enter and steal suspect was tracked to nearby bushland. But, when no trace of him was subsequently found, the search was called off at around 12.30 pm.

Breaking and entering

If local police do apprehend the suspect, he’s likely to be charged with breaking, entering and committing a serious indictable offence, which is a frequently prosecuted offence that falls under section 112 of the Crimes Act 1900 (NSW). This crime involves breaking into a dwelling or other building and taking away property without the owner’s consent, with an intention to permanently deprive the owner of that property.

Case law has found that breaking into a dwelling doesn’t occur by further opening an already open window, but it can be the opening of a closed and unlocked door. Raising a flap door, lifting a latch or loosening a fastening can also amount to breaking.

Mid-last decade, NSW had the highest full-time imprisonment rate for break, enter and burglary offences in the country. This stood at around 77 percent of those found guilty. And this was also a larger portion, when compared with statistics from the US, the UK and NZ.

The sentencing guideline

Due to the large number of break, enter and steal crimes prosecuted in NSW, the Court of Criminal Appeal justices presiding over 1999’s R versus Ponfield established a sentencing guideline that outlines a number of considerations that impact the seriousness of the offence.

Aspects of a break, enter and steal offence that can impact its seriousness include whether the offender was on conditional liberty, the level of planning involved, a history of committing the crime and whether any property damage occurred.

Whether the offence took place at the dwelling of the elderly, sick or disabled is another consideration that can increase the crime’s severity, along with whether it was one of many crimes, if it was part of a series of offences at the same place, as well as the value of the property taken.

Further aspects of a break and enter to steal crime that can impact its seriousness include whether it was carried out at a time when it was more likely occupants would be at home, any trauma affecting the victim of the offence, and the force that was used or threatened in committing the crime.

A serious indictable offence

The actual offence that’s contained in section 112 of the Crimes Act is break, enter and commit a serious indictable offence, which means it also applies to other indictable crimes that are perpetrated after an offender illegally forces their way into a dwelling.

An indictable offence is one that’s usually dealt with before a judge and jury in either the NSW District Court or the Supreme Court. Section 4 of the Crimes Act defines a serious indictable offence as an indictable offence that carries a maximum sentence of at least 5 years prison time.

A subsection 112(1) break and enter charge can lead to up to 14 years imprisonment. And the serious indictable offence aspect of the charge can involve a wide range of offences and criminality, including anything from sexual assault to wounding.

A double stabbing in Chippendale

NSW police arrested a second man last week in relation to a double stabbing at a share house on Shepherd Street in Chippendale that occurred on the morning of the 6 July. The 18-year-old alleged offender was arrested by police at a house in Marayong on the evening of 14 July.

On the morning of the attack, NSW Ambulance officers arrived at the Chippendale residence shortly after 8 am to find a 21-year-old man out the front with stab wounds to his face and arms, while inside they located a 25-year-old with stab wounds to his upper back and torso.

Police had previously arrested a 21-year-old man in relation to the crime, after executing a search warrant at a Blacktown address on the evening following the incident. He was initially charged with two counts of specially aggravated break, enter and commit a serious indictable offence.

Aggravated offences

The Crimes Act also contains aggravated and specially aggravated versions of break, enter and commit a serious indictable offence. Subsection 112(2) provides that an offender found guilty of an aggravated offence is liable to up to 20 behind bars.

Section 105A of the Crimes Act sets out the circumstances that result in an offence being classed as aggravated. These include being armed, perpetrating the offence with another person or others, using violence on a victim or inflicting actual bodily harm.

Holding a person against their will, if the victim or victims of the crime are known to the perpetrator or there are people inside the dwelling or building when the offence is carried out are also circumstances that can result in a charge of aggravated break, enter and commit a serious crime.

The alleged perpetrators of the Chippendale break and enter were charged with the specially aggravated form of the offence contained in subsection 112(3) of the Crimes Act. This carries a maximum penalty of up to 25 years imprisonment for a person found guilty.

The circumstances that warrant the specially aggravated crime are the offender intentionally wounding or inflicting grievous bodily harm, or inflicting grievous bodily harm and being reckless about inflicting actual bodily harm, or when the alleged offender is armed with a dangerous weapon.

A recent Ashfield incident involved a man forcing his way into a house and attempting to sexually assault a woman at knifepoint, before he fled with her mobile phone. This led to a 21-year-old male being charged with aggravated break, enter and choke a person, amongst other charges.

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