Our client, who we’ll call Michael, was sleeping rough along a riverside foreshore area. At the time, he was managing a foot injury and taking prescribed medication for it. That evening he had been drinking.

Michael was not looking for trouble. Instead, he was disoriented, in pain, and just trying to find somewhere familiar. That confusion is what led him, briefly, onto a property he did not recognise as a stranger’s home.

By the time police caught up with him, he was facing an aggravated break and enter charge, which carries a maximum penalty of 14 years in prison. For someone with no fixed address and very little else, that was a frightening prospect.

Entering private property charges in Sydney

Earlier this year, Michael walked down the driveway of a private property and approached the garage, peering in through a window. He believed, in his disoriented state, that it was a friend’s home.

Realising his mistake, he walked around to a sliding door leading into a granny flat at the rear of the property. A resident inside woke up, startled and confused by the noise. Michael was spooked by the reaction and left immediately on foot, without taking anything or causing any damage.

Two days later, police stopped Michael and identified him as outstanding for the incident. He made immediate admissions. He spent around five hours in custody before he was granted bail.

The charges

Michael was initially charged with two offences:

  1. Aggravated break and enter, under section 113(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 14 years’ imprisonment where the offence is committed in circumstances of aggravation.
  2. Entering inclosed lands not being prescribed premises without lawful excuse, under section 4(1)(b) of the Inclosed Lands Protection Act 1901 (NSW). This is a fine-only offence with a maximum penalty of $550.

The gap between those two charges is enormous, and it shaped the whole strategy of the matter.

Our lawyers defence strategy

This was a long-running matter, on foot for more than six months. Our Sydney criminal lawyers used that time carefully. We worked with the prosecution to have the more serious charge, the aggravated break and enter, formally withdrawn, with amended facts agreed between the parties.

That left only the fine-only inclosed lands charge for sentencing. Michael entered a plea of guilty to that offence.

At the sentencing hearing, our submissions focused on Michael’s circumstances: he was receiving Centrelink support, and had since secured shared housing after a period of homelessness.

We put to the court that he was disoriented at the time, left the property immediately once he realised what had happened, and made no attempt to avoid police once located. Our criminal solicitor was also frank with the court that Michael did not have an unblemished record, because credibility with the sentencing court matters more than glossing over a difficult fact.

What is a “circumstance of aggravation” in a break and enter charge?

A break and enter charge becomes “aggravated” under the Crimes Act 1900 (NSW) when specific factors are present, such as the offence happening at night, a weapon being involved, or someone being on the premises at the time.

These factors dramatically increase the maximum penalty a court can impose.

Our fact sheet on criminal court orders in NSW explains the full range of penalties a NSW court can hand down, from a fine through to imprisonment.

Read our other criminal law case studies.

The outcome

The court accepted that a modest fine was the appropriate outcome given Michael’s financial and living circumstances. He was fined $250, with no further penalty.

Given the aggravated charge alone carried a maximum of 14 years’ imprisonment, and the charge Michael was ultimately sentenced on was fine-only with a $550 cap, this was an excellent result. It reflects what can be achieved when a matter is worked through properly, patiently, and with the client’s real circumstances put squarely in front of the court.

Read about a related outcome in our case study on entering inclosed land without lawful excuse.

Need a criminal lawyer for a break and enter charge?

If you are facing a break and enter charge, or any charge under the Crimes Act 1900 (NSW), the difference between the charge first laid and the charge you are ultimately sentenced on can be significant.

Request a free, no-obligation initial chat via the form below, or call us on (02) 9261 4281.

*We always change the names and other identifiable details in case studies to protect client privacy.

Past results do not guarantee future outcomes. Every case is assessed on its individual merits.

This content is for general information purposes only and does not constitute legal advice. You should seek independent legal advice relevant to your specific circumstances.