What is a break and enter offence?

12 December 2025 in Criminal Law | 3 min read | skip to FAQs

A break and enter offence occurs where access to a premises has been obtained by breaching the security of the premises with the intention of committing an offence such as theft or assault. It can include such actions as breaking through a window or climbing over a fence into someone’s property. The offence of break and enter is defined in Section 112 of the Crimes Act 1990 (NSW).

Types of Break and Enter offences

1. Entering a dwelling-house with intent to commit a serious indictable offence
2. Break, enter and commit a serious indictable offence, max penalty 14 yrs
3. Break, enter with intent to commit a serious indictable offence, max penalty 10 yrs
4. Break, enter and commit a serious indictable offence, subsection (1) in circumstances of aggravation, max penalty 20 yrs
5. Break, enter and commit a serious indictable offence, subsection (2) in circumstances of special aggravation, max penalty 25 yrs

Break and Enter Offence

The prosecution must prove that the person

1. Broke into a residence or premises by breaking something like a gate, lock, window or door; and
2. Were therefore able to gain access; and
3. Entered the premises; and
4. Had an intent to commit an offence or did commit an offence, such as stealing or assaulting or intimidating someone

Custodial Penalties

Break and enter is a serious offence and the courts can impose a lengthy term of imprisonment. Depending on the circumstances of the offence, an offender may be liable for up to 25 years in prison.

Non-Custodial Penalties

1. A dismissal of charges and the conditional discharge of an offender (this is also known as a ‘Section 10’) For further information see our dedicated article on Section 10 Convictions
2. Good Behaviour Bond
3. Fine
4. Community Service Order
5. Suspended Sentence
6. Intensive Correction Order
7. Home Detention

Aggravated Forms of the Offence

The seriousness of a break and enter offence can be increased by the presence of an aggravating circumstance. An aggravated offence can be classified as either aggravated or specially aggravated.

Aggravated

A break and enter offence will be aggravated where immediately before, during or immediately after the offence the alleged offender:

1. Is armed with an offensive weapon, or instrument,
2. Is in the company of another person or persons,
3. Uses corporal violence on any person,
4. Intentionally or recklessly inflicts actual bodily harm on any person
5. Deprives any person of their liberty
6. Knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed.

Specially Aggravated

A break and enter offence will be specially aggravated where immediately before, during or immediately after the offence the alleged offender:

1. Intentionally wounds or intentionally inflicts grievous bodily harm on any person,
2. Inflicts grievous bodily harm on any person and is reckless as to causing actual bodily harm to that or any other person,
3. Is armed with a dangerous weapon.

What defences are available?

Duress

Duress occurs where the accused has performed their illegal actions because of serious threats of violence against themselves or family members. In more simple terms, you may be able to rely on the defence of duress if you were forced to commit the break and enter offence. For more information on duress, please see our dedicated article, what is duress

Necessity

The defence of necessity may be relied upon in circumstances where the accused was compelled by some danger or threat to commit a crime. This danger or threat needs to have been of a kind that may cause a person to have reasonably believed that they were exposed to the serious danger or threat.

Self-defence

Self-defence may potentially be relied upon as a defence to a break and enter offence. This defence is substantiated in circumstances where the accused’s criminal actions were carried out in the defence of themselves or someone else.

Plead to a Lesser Offence

It may be possible for your lawyer to negotiate with the prosecution to downgrade the offence if you plead guilty. For more information about the decision to plead guilty or not guilty, please see our article on whether to plead guilty or not.

How can BSM Sydney Lawyers assist you?

The criminal defence lawyers at BSM Lawyer Sydney have extensive experience with break and enter offences and are able to advise you of your legal rights, create an effective defence strategy and advocate strongly for you in court. We will achieve the best possible outcome for you. The criminal lawyers from BSM Sydney Lawyer appear regularly in the Local and District Courts and are proud of the excellent results they achieve for our clients. We will carefully listen to you, review the representations made by the police and negotiate with the prosecution. The senior criminal lawyers at BSM Sydney Lawyers offer a free 20-minute consultation.

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BSM Lawyer Sydney has offices conveniently located in Sydney CBD, Sutherland, Parramatta, Shellharbour and Wollongong.