Break and Entering Moni and Kevin

Breaking and Entering  The crime of entering a building or compound by force so as to commit indictable (serious) criminal offences

Statutory Definition- Crimes Act 1900 (NSW)  Break out of a dwelling-house after committing, or enter with intent to commit, an indictable offence (s 109, maximum penalty 14 years)  break, enter and assault with intent to murder (s 110, maximum penalty 25 years)  enter a dwelling house with intent to commit a serious indictable offence (s 111, maximum penalty 10 years)  break, enter and commit a serious indictable offence (s 112, maximum penalty 14 years)  break and enter with intent to commit a serious indictable offence (s 113, maximum penalty 10 years)  being armed with intent to commit an indictable offence (s 114, maximum penalty 7 years), and  being a convicted offender armed with intent to commit an indictable offence (s 115, maximum penalty 10 years).

Crimes Act 1900 (NSW) Section 105A  Circumstances of Aggravation (factors that increase guilty and enormity) -armed with an offensive weapon/instrument -in the company of another person/s -uses corporal violence on another person -’intentionally’ or ‘recklessly’ inflicts actual bodily harm on any person -deprives any person of his or her liberty -understands the presence of people in the location of the crime

Crimes Act (continued) Circumstances of Special Aggravation -the alleged offender intentionally wounds or intentionally inflicts grievous bodily harm on any person -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

Conflicts in Achieving Justice in Aggravating Factors  If defendant is presumed to have known the fact that there was a person or persons in the house or property, the punishment should be more severe. This should not be considered as a mitigating factor as it is difficult to prove or disprove the alleged offender’s knowledge at the time of the offence.  Some may argue that the occupancy or vacancy of the house should not inform and dictate the way in which mitigating factors are considered in the sentencing processes.

Mitigating Factors- Break and Enter  Evidence of genuine regret and remorse or any rehabilitative steps taken by the offender are deemed by the judiciary to be appropriate mitigating factors to be taken into account in sentencing processes for Break and Enter offences.

Assessing Objective Seriousness  R v Huynh[2005] NSWCCA 220 -Huynh stole items in a Break and Enter Attempt -His offence was classified as "towards the mid- range“ (relative seriousness in indictable offences). Huynh argued that larceny is classified as a bottom range indictable offence. -However, larceny was an aggravating factor, not the only crime committed -Court ruled that assessment of objective seriousness is to be made by reference to all the facts and circumstances of the offence and to the range of offences of its kind which come before the court (prcedent in common law)

Assessing Objective Seriousness  Prevalence, prior record and conditional liberty are not relevant to an assessment of the objective seriousness of an offence under s 112(2)-R v Johnson [2004] NSWCCA 140  Provocation by the victim may be considered- the offender being motivated by a desire for retribution, not by personal gain to acquire property: Lovell v R [2006] NSWCCA 222- victim‘s lewd conduct to offender‘s sister

Application of De Simoni Principle  A court cannot take into account as an aggravating factor a circumstance that would warrant conviction for a more serious offence in criminal trials relating to 'Break and Enter'

Defences to Break and Enter  Duress - if an individual coerced into the act  Necessity - necessary in particular situation and circumstance  Self defence - countermeasure in defending oneself and property  Detailed under Crimes Act 1900 (NSW) Sect 112(1)-113(1)