BREAK AND ENTER
S419 Criminal Code 1899 makes it an offence to enter or be in a dwelling with intent to commit an indictable offence.
S421 Criminal Code 1899 makes it an offence to enter or be in premises with intent to commit an indictable offence.
What the prosecution must prove.
The prosecution must prove beyond reasonable doubt that a person:
1. Entered or was in a dwelling or premises.
2. Had an intention to commit an indicatable offence.
What it means.
A person enters a dwelling or premises as soon as any part of their body or any instrument they use enters the place to any extent. The prosecution does not have to prove that someone got all the way into a place.
Premises are defined to include a building or structure (that is not a dwelling), a vehicle, caravan or tent or another similar place. It does not include the land on which premises are situated.
The prosecution must prove the defendant had an actual intention to commit an offence. A drunk person breaking into a house in search of a place to sleep would not do so with the intention to commit n indictable offence.
An indictable offence includes a wide range of offences including Stealing, any form of Assault or a sexual offence. The prosecution does not have to specify an indictable offence. However, a Magistrate or jury must be satisfied beyond reasonable doubt that the defendant had an intention to commit an offence.
Break is given a much wider meaning than its everyday use. Opening an unlocked door even pushing further open a door left ajar is a break. At law, a person breaks into a dwelling or premises if they, “opens, by unlocking, pulling, pushing, lifting … any door, window, shutter, cellar … intended to close or cover an opening in a dwelling or any premises, or an opening giving passage from one part of a dwelling or any premises to another”.
The available defences.
• Claim of Right
The usual penalties.
The maximum penalty for the criminal offence of Entering or being in a Premises with Intent (but not committing an offence) is 10 years imprisonment.
The maximum penalty for the criminal offences of Entering or being in a Dwelling (not committing an offence) or Entering or being in Premises and committing an offence is 14 years imprisonment.
The maximum penalty is increased to life imprisonment for the offence of Break and Enter Dwelling and commit offence, or entering or Being in a Dwelling if a person enters a dwelling in the night time, threatens to use actual violence, is or pretends to be armed with a weapon, is in the company of 1 or more persons, or damages property of attempts to or threatens to do so
An increased penalty only applies if the circumstances are expressly charged and either proved beyond reasonable doubt or admitted.
The maximum penalty is a poor numerical indicator of sentences usually imposed. It plays a very important role in setting the seriousness of an offence. The maximum penalty is hardly ever imposed.
It is important to seek expert advice before dealing with a criminal offence of Burglary or Break and Enter.