Break and enter in NSW.

The phrase "breaking and entering" carries a fixed meaning in NSW that does not match how people use it in everyday speech. Most people picture a smashed window. The law looks at three separate things: the breaking, the entry, and what the person meant to do or did once inside. The charge, the court, and the penalty all turn on those three things. This article explains the break and enter offences in Part 4 Division 4 of the Crimes Act 1900 (NSW), using the framework in the NSW Judicial Commission's sentencing material and the leading cases.

Is break and enter a crime in Australia?

Yes. Each state and territory has its own version. In NSW the offences sit in Part 4 Division 4 of the Crimes Act 1900. There is no single offence called "burglary" in NSW, although people use that word loosely. The conduct that other places call burglary is charged here as break and enter. The most serious examples, where a person forces entry into an occupied home and uses violence, are often described in the press as a home invasion. That term is a description, not a charge. It is prosecuted as an aggravated or specially aggravated break and enter.

The offences are not limited to houses. Section 112 applies to a "dwelling-house or other building". A shed, a shop, a warehouse, and a commercial unit all count. The dwelling cases tend to attract heavier sentences because of the intrusion on a person's home, but the section reaches well beyond homes.

What are the elements of break and enter?

Take the main charge, break, enter and commit a serious indictable offence under section 112(1). The Crown must prove a breaking, an entry, and the commission of a serious indictable offence in the building.

A "breaking" does not need damage. Any force used to remove an obstruction to entry is enough. Pushing open a closed door, lifting a latch, or sliding open an unlocked window is a breaking. Walking through a door that is already wide open is not. There is also a "constructive" breaking, where entry is gained by a threat, a trick, or an arrangement with someone inside. The law has long treated those routes in as the equivalent of force.

An "entry" is made once any part of the body crosses the line of the building. A hand through a window can be enough. The third element, the serious indictable offence, means an indictable offence punishable by five years or more, as defined in section 4 of the Act. Stealing is the usual one, but assault, intimidation, or property damage can all serve. Because that definition is wide, section 112 covers a broad span of conduct, as the Court of Criminal Appeal noted in Kelly v R [2007] NSWCCA 357.

Section 113 is the related charge of break and enter with intent. It is used where the person broke and entered meaning to commit a serious indictable offence but was disturbed or arrested before they carried it out. The intent is the element that has to be proved. Section 111 deals with entering a dwelling with intent, without a breaking.

What is aggravated break and enter?

An aggravated offence under section 112(2) is a section 112(1) offence committed with a circumstance of aggravation. Section 105A(1) lists them. The offender is armed with an offensive weapon or instrument; or is in company with one or more other people; or uses corporal violence; or intentionally or recklessly inflicts actual bodily harm; or deprives a person of their liberty; or knows that someone is in the place at the time.

The specially aggravated offence under section 112(3) is reserved for the worst conduct. The circumstances of special aggravation in section 105A(1) are that the offender intentionally wounds or intentionally inflicts grievous bodily harm; or inflicts grievous bodily harm while reckless as to actual bodily harm; or is armed with a dangerous weapon. A dangerous weapon means a firearm, an imitation firearm, a prohibited weapon, or a spear gun.

The number of aggravating features matters at sentence. As Simpson J put it in R v Huynh [2005] NSWCCA 220, generally the more circumstances of aggravation that are present, the more serious the offence, although a single circumstance can still place an offence in the mid-range. The court must also avoid double counting. If violence is already an element of the offence inside, it cannot be added again as a separate aggravating factor under section 21A.

What is the maximum penalty for break and enter?

The maximum penalties rise with the seriousness of the charge:

• Section 112(1), break, enter and commit a serious indictable offence: 14 years.
• Section 112(2), aggravated: 20 years, with a standard non-parole period of 5 years.
• Section 112(3), specially aggravated: 25 years, with a standard non-parole period of 7 years.
• Section 113, break and enter with intent: 10 years for the basic offence, with higher maxima for the aggravated and specially aggravated forms.
• Section 111, enter a dwelling with intent: 10 years.

A maximum penalty marks the worst category of case. It is not the going rate. Most break, enter and steal matters sit well below the maximum. The standard non-parole period is the reference point the legislature set for an offence in the middle of the range of objective seriousness for that kind of offence. It guides the court; it is not a starting point and it is not a floor.

Which court hears a break and enter charge?

A section 112(1) or 112(2) charge can be dealt with in the Local Court if the serious indictable offence inside was stealing or destroying or damaging property, the value does not exceed $60,000, and, for the aggravated form, the only circumstance of aggravation is being in company. That is set out in Table 1 of Schedule 1 to the Criminal Procedure Act 1986 (NSW). Either the prosecutor or the accused can elect to take the matter to the District Court instead.

Where it stays summary the maximum the Local Court can impose is two years for a single offence, and the standard non-parole period does not apply. That makes the choice of court one of the most important early decisions in a break and enter case. Specially aggravated matters under section 112(3), and matters involving serious violence, are dealt with in the District Court.

How are these matters sentenced?

Break, enter and steal has long been treated as a serious crime, and general deterrence carries real weight. For many years the guideline judgment in R v Ponfield (1999) 48 NSWLR 327 listed the features that lift the seriousness of a break and enter: offending while on bail or parole, professional planning, targeting the elderly or the sick, vandalism, repeat incursions, the value of what was taken, and the likelihood that the home was occupied. The Court of Criminal Appeal held in MacBlane v R [2025] NSWCCA 52 that those factors have now largely been overtaken by the statutory aggravating factors in section 21A of the Crimes (Sentencing Procedure) Act 1999, partly because using both lists risks counting the same feature twice.

The objective seriousness of the offence is assessed on the facts, not by tallying boxes. A prior record is not part of that assessment. As the Court has confirmed, prior offending is not an objective circumstance and cannot be used to set the upper limit of a proportionate sentence, although it bears on whether leniency is extended. The role of each offender, what they knew of any planning, and the harm done to the occupant are the matters that move a case up or down the range.

A plea of guilty entered early reduces the sentence for its utilitarian value. The discount can be up to 25 per cent in the Local Court and is set by the stage reached in the District Court process. We deal with that in our note on the early guilty plea discount in NSW.

What is the difference between trespassing and break and enter?

Trespass and break and enter sit far apart. Trespass on inclosed lands under the Inclosed Lands Protection Act 1901 (NSW) is a summary offence punished by a fine. It needs only that a person entered or stayed on the land without the consent of the occupier. There is no need to prove any breaking, and no need to prove any intent to commit a further offence.

Break and enter is an indictable offence. It needs a breaking, an entry, and either an intent to commit a serious indictable offence or the actual commission of one. The breaking and the intent are what raise the conduct from a fine-level trespass to a charge that can carry years of imprisonment. A person who climbs a fence and looks around a yard may be a trespasser. A person who forces a door to get inside and steal is in break and enter territory.

What we do for clients facing a break and enter charge.

The first task is to read the charge closely. Many break and enter briefs are over-charged. A matter laid as aggravated may not stand up if the only basis for the aggravation is thin, for example a claim of being in company that the evidence does not support. If the aggravating circumstance falls away, the charge drops to section 112(1), the standard non-parole period no longer applies, and the matter may be able to stay in the Local Court.

The identification evidence is the next battleground. Many of these matters turn on DNA, fingerprints, closed-circuit footage, or a phone left at the scene. Each of those needs to be tested for continuity and reliability. Where the case is strong, the work shifts to mitigation: the early plea, the reasons behind the offending, drug or gambling treatment, and a sentence option short of full-time custody where the facts allow. Where the case is weak on an element, it is defended.

If you or a family member has been charged with break and enter in NSW, get advice before the first court date. The choices made early, on charge, on court, and on plea, set the path for everything that follows.

Frequently asked.

What are the charges for breaking and entering in NSW?

Part 4 Division 4 of the Crimes Act 1900 (NSW) contains the break and enter offences. The main charge is break, enter and commit a serious indictable offence under section 112. Related charges include entering a dwelling with intent under section 111, break and enter with intent under section 113, and being armed with intent under sections 114 and 115. Each has aggravated and specially aggravated forms where the facts call for them.

What is the punishment for breaking and entering in NSW?

The basic offence under section 112(1) carries a maximum of 14 years. The aggravated form under section 112(2) carries 20 years and a standard non-parole period of 5 years. The specially aggravated form under section 112(3) carries 25 years and a standard non-parole period of 7 years. These are maximum and reference points, not the sentence in any given case.

Is break and enter dealt with in the Local Court or the District Court?

A section 112(1) or 112(2) charge can stay in the Local Court if the serious indictable offence is stealing or damaging property, the value does not exceed $60,000, and for the aggravated form the only circumstance of aggravation is being in company. Otherwise, or if either side elects, the matter goes to the District Court. The standard non-parole period does not apply when a matter is dealt with summarily.

What is the standard non-parole period for aggravated break and enter?

Five years for an aggravated offence under section 112(2) and seven years for a specially aggravated offence under section 112(3), for offences committed on or after 1 February 2003 under section 54B of the Crimes (Sentencing Procedure) Act 1999 (NSW). The standard non-parole period is a reference point for a mid-range offence, not a starting point or a minimum.

What is the difference between trespassing and break and enter?

Trespass on inclosed lands under the Inclosed Lands Protection Act 1901 (NSW) is a summary offence punished by a fine. It needs only entry without consent. Break and enter under the Crimes Act needs a breaking, an entry, and either an intent to commit a serious indictable offence or the commission of one. The intent and the breaking are what separate the indictable charge from simple trespass.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 29 June 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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