Breaking entering and committing serious indictable offence Simplicita Aggravation and Special Aggravation

Offence title:

Breaking etc into any house etc and committing serious indictable offence

Act:

112 Crimes Act (NSW)

Offence:

(1)   A person who breaks into a house or other building and commits a serious indictable offence while in there, or being in a house or other building, commits a serious indictable offence and breaks out, commits an offence.

(2)   Where the offence in (1) is committed in circumstances of aggravation, the penalty is increased.

(3)   Where the offence in (1) is committed in circumstances of special aggravation, the penalty is increased further.

Penalty:

(1)   Imprisonment 14 years

(2)   Imprisonment 20 years

(3)   Imprisonment 25 years

Summary/Indictable/mixed:

(1)   Mixed – where the “serious indictable offence” is stealing or property damage and the value of the property stolen or damaged is valued at $60,000 or less. In all other cases the offence is Indictable.

(2)   Indictable

(3)   Indictable

Jurisdiction:

(1)   Local, District or Supreme Court.

(2)   District or Supreme Court.

(3)   District or Supreme Court.

How committed:

(1)   Person A breaks a window of a house, climbs through and smashes the property inside and leaves.

(2)   Person A and B kick down the door of a house and steal cash and jewellery.

(3)   Person A and B jemmy open a door at night while the homeowners are asleep in bed. The owner’s car is in the driveway, which shop alert A and B that the owner is inside. The homeowner disturbs A and B in the process of the burglary and is wounded when A and B beat him in the process of escaping from the home.

Important note:

Serious indictable offence means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.

circumstances of aggravation mean circumstances involving any one or more of the following:

(a)   the alleged offender is armed with an offensive weapon, or instrument,

(b)   the alleged offender is in the company of another person or persons,

(c)    the alleged offender uses corporal violence on any person,

(d)   the alleged offender intentionally or recklessly inflicts actual bodily harm on any person,

(e)   the alleged offender deprives any person of his or her liberty,

(f)    the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed.

The matters referred to in (c), (d) or (e) above can occur immediately before, or at the time of, or immediately after any of the elements of the offence concerned occurred.

For the purpose of (f) above, if a person was present, it is a presumed fact that the alleged offender(s) knew the person was in the premises and the alleged offender bears the evidential onus of proof that they had no reasonable grounds to believe any person was present.

circumstances of special aggravation mean circumstances involving any or all of the following:

(a)   the alleged offender intentionally wounds or intentionally inflicts grievous bodily harm on any person,

(b)   the alleged offender inflicts grievous bodily harm on any person and is reckless as to causing actual bodily harm to that or any other person,

(c)    the alleged offender is armed with a dangerous weapon.

The matters referred to in (a) or (b) above can occur immediately before, or at the time of, or immediately after any of the elements of the offence concerned occurred.

This Division of the Crimes Act contains various variants of the offence of breaking and entering:

s. 109 Breaking out of dwelling-house after committing, or entering with intent to commit, indictable offence

s. 110 Breaking, entering and assaulting with intent to murder etc

s.111 Entering dwelling-house

s. 113 Breaking etc into any house etc with intent to commit serious indictable offence