Break and Enter - ss.113(1), 113(2) and 113(3)

​Back to Sentencing Tables Index

These tables are intended to be used as a guide only. Individual cases should be read if they are to be relied upon.

Break and Enter with intent to Commit an Offence

s.113(1) break and enter with intent to commit serious indictable offences - 10y

Table last updated: 13 August 2018.

Turner [2004] NSWCCA 260

• Offence: s.113(1) (steal)
• Plea: PG (20% on appeal)
• Sentence: 3y 4m, NPP 2y 6m
• Appeal: AA, 3y, NPP 2y 3m
• Record: Breached parole
• Facts: After argument with father broke into home through window - fled when occupant returned.

Callaghan (2006) 160 A Crim R 145

• Offence: 2 x s.113(1) (steal)
• Plea: PG
• Sentence: 2y, NPP 12m
• Appeal: AD
• Record: Breached parole
• Facts: On two separate occasions broke into video store – no property stolen.

Sharpe [2007] NSWCCA 217

• Age: 26
• Offence: s.113(1) (steal)
  Sched: 3 offences
• Plea: PG
• Sentence: 3y 6m, NPP 2y
• Appeal: AD
• Record: Significant record for BES offences – breached parole for agg BES – offence committed 3 days after release
• Facts: Broke into garages in home unit complex – offence at lower end of scale of seriousness. Drug and alcohol addiction – difficult childhood.

HA [2009] NSWCCA 31

• Offence: s.113(1) (steal)
• Plea: PG (15%)
• Sentence: 1y 8m, NPP 1y 3m
• Appeal: AD
• Record: Number of BE offences. On parole.
• Facts: Broke into garage of unit with co-offender using crowbar. Parity argument rejected.

Gray [2018] NSWCCA 39

• Age: 29
• Offence:
  s.113(1)
  s.113(1)
  s.112(1)
  s.166 offence: Drive recklessly
  Sched: 2 offences
• Plea: PG (25%)
• Sentence:
  2y 3m
  1y 6m
  2y 6m
  5m
  Agg: 5y
  NPP 3y 9m
• Appeal:
  AA
  2y
  1y 3m
  2y
  5m
  Agg: 4y 4m
  NPP 3y 3m
• Record: ​lengthy record – breached conditional liberty
• Facts: Attempted to gain access to residential premises by smashing back window – entered building in city and forced entry to suite owned by mortgage broker, leaving without taking anything – forced entry into second suite and stole property worth $7,750 – limited planning. Drug user.

Aggravated Break and Enter with intent to Commit Serious Indictable Offence

s.113(2) aggravated break and enter with intent to commit serious indictable offences - 14y

s.105A(1) circumstances of aggravation: armed with offensive weapon or instrument; in company; uses corporal violence; maliciously inflicts actual bodily harm; deprives person of liberty; knows there is person(s) in dwelling

Table last updated: 15 May 2017.

Ditfort [1999] NSWCCA 442

• Age: 32
• Offence: s.113(2) (steal)
• Circumstance of Aggravation: In company
• Plea: PG
• Sentence: MT 2y, AT 18m
• Appeal: AA, To vary commencement date
• Record: Lengthy record - released to parole nine days prior to offence
• Facts: Broke into shop with two co-offenders armed with cricket bat and piece of timber - stole money and cigarettes. Aboriginal with deprived upbringing; drug addiction.

Lord [2001] NSWCCA 533

• Age: 18
• Offence: s.113(2) (steal)
  Sched: AOABH
• Plea: PG
• Sentence: 12m GBB (no conviction recorded)
• Appeal: Crown AA, 18m suspended sentence
• Record: Nil
• Facts: Broke into home of 71y female - pushed past victim in attempt to escape - victim fell on tiles injuring herself - Lesser offender. Excellent prospects of rehabilitation – remorse.

Rutter [2003] NSWCCA 306

• Offence: s.113(2) (steal)
  
• Plea: PG
• Sentence: 6y, NPP 3y
• Appeal: AD
• Record: Nil
• Facts: Waited in car while co-offender entered house brandishing pistol and impersonating police officer – in telephone contact with co-offender. Also dealt with for drug offences – Psychological disorder.

Elmir and Salami [2003] NSWCCA 192

Elmir

• Age: 33
• Offence:
  s.113(2) (AOABH)
  s.59 AOABH
  
• Circumstance of Aggravation: Infliction of corporal violence
• Plea: PG (20%)
• Sentence:
  Total: 3y PD, NPP 18m
  
• Appeal: Crown AA, 2y, NPP 12m
  
• Record: Lengthy but old
  
• Facts: Forced way into house and chased occupants – assaulted male victim over sustained period of time with punches and pool cue – Minor injuries inflicted.
  Revenge for serious assault on younger brother of Elmir – Elmir principle offender - Remorse.

Salami

• Age: 30
• Offence:
  s.113(2) (AOABH)
  s.59 AOABH
• Circumstance of Aggravation: Infliction of corporal violence
• Plea: PG (20%)
• Sentence:
  Total: 2y 6m PD, NPP 12m
• Appeal: 1y 9m, NPP 9m
• Record: Minor- no violence
• Facts: Forced way into house and chased occupants – assaulted male victim over sustained period of time with punches and pool cue – Minor injuries inflicted.
  Revenge for serious assault on younger brother of Elmir – Elmir principle offender - Remorse.
  

Lenthall [2004] NSWCCA 248

• Age: 26
• Offence:
  s.113(2) (steal)
  Sched: 3 offences
• Circumstance of Aggravation: In company
• Plea: PG (25%)
• Sentence: 5y 3m, NPP 2y 6m, Compensation order
• Appeal: AA, 3y 9m, NPP 1y 10m
• Record: "appalling"
  
• Facts: Ram-raid in stolen car with 2 co-offenders of service station - $10,000 damage to service station. Remorse – good prospects of rehabilitation – parity.

Pettersen [2009] NSWCCA 91

• Age: 25
• Offence:
  s.113(2) (steal)
  Dangerous driving
  Sched: Take and drive conveyance
• Circumstance of Aggravation: In company
• Plea: PG
• Sentence: 3y 9m, NPP 2y, (6m concurrent)
• Appeal: Crown AD
• Record: Breached parole – significant record
  
• Facts: Driver of car – four co-offenders broke into club and threatened cleaners with gun – attempt made to break into ATM – police car chase followed by attempt to escape by foot – unaware of handgun – unaware people in club. Remorse – Sentences concurrent to revoked parole. Co-offenders Bendt and Fell sentenced for s.113(3) - [2009] NSWCCA 91.

Haydon [2012] NSWCCA 151

• Age: 25
• Offence:
  s.113(2) (steal)
  Sched: 3 offences
• Circumstance of Aggravation: In company
• Plea: PG (25%)
• Sentence: 2y 6m, NPP 1y 10m
• Appeal: AD 
• Record: Breached parole for similar offences
• Facts: With co-offender attempted to break into shed and steal motorbikes. Sentence imposed 13m after commencement of sentence for s.112(1) offence.

Pettersen [2013] NSWCCA 20

• Age: 30
• Offence: 
  s.113(2) (steal)
  Sched: 3 car offences
  Conspiracy to BES in agg circumstances
• Circumstance of Aggravation: In company
• Plea: PG (25%)
• Sentence: FT 3y 9m, Total: 7y 3m, NPP 4y 3m
• Appeal: AD 
• Record: Lengthy record for dishonesty offences – breached parole
• Facts: Attempted unsuccessfully to break into commercial premises using crowbar - made preparations to break into warehouse but abandoned attempted when alerted to police presence – stole several car to assist attempts.

Bamblett [2013] NSWCCA 161

• Offence: s.113(2) (steal)
• Circumstance of Aggravation: Premises occupied
• Plea: PG
• Sentence: 4y 6m, NPP 3y 4m
  
• Appeal: AD
• Record: Lengthy record – breached parole of 10 days for serious offences
  
• Facts: Broke into house at night through window of kitchen – entered bedroom with sleeping couple – apprehended in house but fled. Drug addiction.

Mitchell M and Mitchell P [2013] NSWCCA 318

• Co-offender: Mitchell
• Age: 19 and 22
• Offence: s.113(2) (steal)
  Sched: Larceny, Carried in conveyance
• Circumstance of Aggravation: In company
• Plea: PG (25%)
• Sentence: 2y 3m, NPP 1y 3m
  
• Appeal: AA, 9m, NPP 6m
• Record: Children Court matters dealt with by fines, probation
  
• Facts: Brothers - offenders at night walking past premises of audio-electronics business - entered the yard and drove away in vehicle – later returned and entered premises to steal tools and music equipment - "at the lower end of range" of objective seriousness. Manifestly excessive – young adult offenders - No previous custody.

Mitchell [2014] NSWCCA 63

• Co-offenders: Mitchell, Mitchell
• Age: 40
• Offence: s.113(2) (steal)
  Sched: Larceny, Take and drive a conveyance
• Circumstance of Aggravation: In company
• Plea: PG (25%)
• Sentence: 3y, NPP 2y
  
• Appeal: AA, 1y 10m, NPP 1y
• Record: Lengthy record
  
• Facts: Brothers - walking past premises of audio-electronics business at night - entered yard and drove away with car – later returned and entered premises to steal tools and music equipment - lower end of range. Senior offender.

Huynh [2015] NSWCCA 179

• Offence: s.113(2) (steal)
  Sched: Resist arrest, assault police
• Circumstance of Aggravation: In company
• Plea: PG (25%)
• Sentence: 4y, NPP 3y 8m
  
• Appeal: AA, 4y, NPP 3y
• Record: Lengthy
  
• Facts: With co-offender broke into house – ransacked bedroom while co-offender struggled with resident and held knife to neck. Difficult childhood – early drug addiction – chronic depression.

Fayad [2017] NSWCCA 81

• Age: 45
• Offence: s.113(2) (steal)
  Sched: 3 offences
• Circumstance of Aggravation: In company
• Plea: PG (12.5%)
• Sentence: 7y, NPP 4y 9m
  
• Appeal: AD
• Record: Minor but breached bail for assault offence
  
• Facts: Drove stolen vehicles into glass doors of shopping centre in early hours of morning – attempting to reach ATM – extensive damage – considerable planning. Harsh custodial conditions.

Specially Aggravated Break and Enter with intent to Steal - Single

s.113(3) specially aggravated break and enter with intent to commit serious indictable offences - 20y

s.105A(2) circumstances of special aggravation: wounds or maliciously inflicts GBH; armed with dangerous weapon

Table last updated: 15 May 2017.

Guthrie [2002] NSWCCA 77

• Age: 27
• Offence: s.113(1) (steal)
  Sched: Possess unauth firearm
• Circumstance of Aggravation: Armed with dangerous weapon
• Plea: PG (just under 20% on appeal)
• Sentence: 4y 6m, NPP 3y
• Appeal: Crown AA, 6y 6m, NPP 4y 6m
• Record: Lengthy record including firearms
  
• Facts: Attempted to use altered truck to remove ATM with co-offender- Arrested after struggle where offender produced gun - Instigator - Carefully planned offence - Major criminal activity

Newman and Simpson (2004) 145 A Crim R 361 NSWCCA

Newman

• Age: 23
• Offence: s.113(1) (steal)
  
• Circumstance of Aggravation: Wounding
• Plea: PG (20%)
• Sentence: 8y, NPP 5y
  
• Appeal: AD
• Record: Significant record
  
• Facts: Female attended home of male acquaintance at night – obtained entry by pretending to seek spiritual counselling – complainant assaulted by two male co-offenders and threatened with knife. KS - 2 young children.

Simpson (female)

• Age: 22
• Offence: s.113(3)
  
• Circumstance of Aggravation: Wounding
• Plea: PG (20%)
• Sentence: 5y 6m, NPP 3y
• Appeal: AD
• Record: Minor record for violence – breached bond
• Facts: Female attended home of male acquaintance at night – obtained entry by pretending to seek spiritual counselling – complainant assaulted by two male co-offenders and threatened with knife. KS - 2 young children.

Bendt and Fell [2009] NSWCCA 91

Bendt 

• Age: 20
  
• Offence: 
  s.113(1) (steal)
  Sched: Take and drive conveyance
• Circumstance of Aggravation: In company, Armed with dangerous weapon
• Plea: PG (25%)
• Sentence: 5y 3m, NPP 3y, recommendation for referral to Drug Court
• Appeal: Crown AA, 5y 9m, NPP 3y 3m
• Record: Breached parole – lengthy record
• Facts: Four offenders broke into club and threatened cleaners with gun – B smashed glass door to enter - attempt made to break into ATM with concrete saw – F took possession of gun – police car chase followed by attempt to escape by foot. Remorse. Driver of car Petersen sentenced for s.113(2) [2009] NSWCCA 91.

Fell

• Age: 30
  
• Offence: 
  s.113(1) (steal)
  Sched: Take and drive conveyance
• Circumstance of Aggravation: In company, Armed with dangerous weapon
• Plea: PG
• Sentence: 5y 3m, NPP 3y
• Appeal: Crown AA, 5y 9m, NPP 3y 3m
• Record: Breached parole – lengthy record
• Facts: Four offenders broke into club and threatened cleaners with gun – B smashed glass door to enter - attempt made to break into ATM with concrete saw – F took possession of gun – police car chase followed by attempt to escape by foot. Remorse. Driver of car Petersen sentenced for s.113(2) [2009] NSWCCA 91.

Smith [2011] NSWCCA 209

• Age: 27
  
• Offence: s.113(1) (steal)
  Sched: Assault
• Circumstance of Aggravation: Wounding
• Plea: PG (15%)
• Sentence: 6y 9m, NPP 5y
• Appeal: AA, 4y 3m, NPP 3y
• Record: Drugs, dishonesty
• Facts: A's mother had been receiving intimidating and harassing phone calls from N – A went with his mother and brother to N's house – A took with him a piece of timber – A assaulted the wrong person, V, with the timber – V suffered injury to his forehead and body. Alcohol and anger management issues. SJ did not give adequate weight to provocation by N  and motive – not a "mid-range" offence – manifestly excessive sentence.