Our experienced criminal law solicitors have prepared a brief overview of the law relating to break and enter.
If you or someone you care about is facing a charge of break and enter, you need specific advice and should contact Gatenby Criminal Lawyers on 55800120 for advice.
For more information on other similar charges, visit our PROPERTY OFFENCES.
Break and Enter – The Law
Section 421 of the Queensland Criminal Code creates the offence of enter premises. The aggravation of break is included made out in subsection (3).
(1) Any person who enters or is in any premises with intent to commit an indictable offence in the premises commits a crime.
(2) Any person who enters or is in any premises and commits an indictable offence in the premises commits a crime.
(3) If the offender gains entry to the premises by any break and commits an indictable offence in the premises, he or she is liable to imprisonment for life.
Elements of the offence
To be found guilty of the offence of break and enter, the prosecution is required to prove, beyond a reasonable doubt, the following elements:
- The accused entered/was in an area;
- The area was a dwelling of another person;
- The accused intended to commit and indictable offence.
- The accused entered the dwelling via a break.
Section 418 of the Queensland Criminal Code provides some important definitions.
(1) A person who breaks any part, whether external or internal, of a dwelling or any premises, or opens, by unlocking, pulling, pushing, lifting, or any other means whatever, any door, window, shutter, cellar, flap, or other thing, 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, or an opening giving passage from one part of the dwelling to another, is said to break the dwelling or premises.
(2) A person is said to enter a dwelling or premises as soon as any part of the person’s body or any part of any instrument used by the person is within the dwelling or premises.
(3) A person who obtains entrance into a dwelling or premises by means of any threat or artifice used for that purpose, or by collusion with any person in the dwelling or premises, or who enters any chimney or other aperture of the dwelling or premises permanently left open for any purpose, but not intended to be ordinarily used as a means of entrance, is deemed to have broken and entered the dwelling or premises.
The maximum penalty for the allegation of enter premises with the aggravation of break is life imprisonment.
Jurisdiction – Where will the matter be heard?
The offence is indictable.
The charge will initially be commenced and in the Magistrates Court and may be committed to the District Court.
Conviction – Does a conviction have to be recorded?
The sentencing Court has a discretion whether or not to record a conviction against you for the offence of fraud. Generally a conviction would not be recorded for a minor first offence for this type of offence, although one is likely for subsequent convictions, or where a circumstance of aggravation is made out.
The relevant factors are set out in section 12 of the Penalties and Sentences Act 1992, and include, the nature of the offence, the offenders character and age, together with the impact the recording a conviction would have on the offenders chances of finding employment. If you are concerned about a conviction being recorded on you or a loved you should seek legal advice.
For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.