Property Law: Property Offences, Penalties & Defences

Division 4 of the Crimes Act NSW deals with Housebreaking type offences. It is important to note that there are degrees of seriousness relative to some of these offences and they may be characterised as alleging one of three categories:

1. The basic offence
2. Aggravated Offence and
3. Specially aggravated offence

For the purposes of these categories, the following definitions must be considered:

Circumstances of Aggravation occurs when the alleged offender is involved in one or more of the following – armed with an offensive weapon or instrument, is in the company of another, uses corporal violence on any person, intentionally or recklessly inflicts actual bodily harm, deprives a person of their liberty or knows that there are persons in the place where the offence is committed.

Circumstances of Special Aggravation occurs when the alleged offender wounds or intentionally or recklessly inflicts grievous bodily harm on any person and/or is armed with a dangerous weapon.

Section 109:
Creates the offence of “breaking out” of a dwelling house and states:

(1) Whosoever enters the dwelling-house of another, with intent to commit a serious indictable offence therein, or, being in such dwelling-house commits any serious indictable offence therein, and in either case breaks out of the said dwelling-house shall be liable to imprisonment for fourteen years.

(2) Aggravated offence: A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. Max Penalty:20 years imprisonment.

(3) Specially aggravated offence: A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. Max Penalty: 25 years imprisonment.

Section 110:
Creates the offence of Breaking, entering and assaulting with intent to murder and states:

Whosoever breaks and enters any dwelling-house, or any building appurtenant thereto, and while therein or on premises occupied therewith assaults with intent to murder any person, or inflicts grievous bodily harm upon any person, shall be liable to imprisonment for 25 years.

Section 111:
Creates the offence of entering a dwelling-house with intent to commit a particular offence. It states:

(1) Whosoever enters any dwelling-house, with intent to commit a serious indictable offence therein, shall be liable to imprisonment for ten years.

(2) Aggravated offence: A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. Max Penalty: 14 years imprisonment.

(3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. Max Penalty: 20 years imprisonment.

Section 112:
Creates the offence of breaking into and committing a serious indictable offence. It states:

(1) A person who:
(a) breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or
(b) being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building,
is guilty of an offence and liable to imprisonment for 14 years.

(2) Aggravated offence: A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. Max Penalty 20 years imprisonment.

(3) Specially aggravated offence: A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. Max Penalty 25 years imprisonment.

Section 113 creates the offence of breaking into any house etc with intent to commit a serious indictable offence. It states:

(1) A person who breaks and enters any dwelling-house or other building with intent to commit any serious indictable offence therein is guilty of an offence and liable to imprisonment for 10 years.

(2) Aggravated offence: A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. Max Penalty 14 years imprisonment.

(3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years.

Section 114(1):
Creates the offence of being armed with intent to commit indictable offence. It states:

Any person who:
(a) is armed with any weapon, or instrument, with intent to commit an indictable offence,
(b) has in his or her possession, without lawful excuse, any implement of housebreaking or safebreaking, or any implement capable of being used to enter or drive or enter and drive a conveyance,
(c)has his or her face blackened or otherwise disguised, or has in his or her possession the means of blacking or otherwise disguising his or her face, with intent to commit an indictable offence,
(d)enters or remains in or upon any part of a building or any land occupied or used in connection therewith with intent to commit an indictable offence in or upon the building,
shall be liable to imprisonment for seven years.

Section 115 imposes a maximum penalty of 10 years for an offender convicted under s.114 and who has been previously convicted of any indictable offence.

Section 117:
Ceates the offence of Larceny and states:

Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years.

At common law, larceny is committed when a person takes and carries away, with a felonious intent, goods which are the subject of larceny at common law, without the consent of the owner, and without claim of right made in good faith and with the intention of permanently depriving the owner of such goods.

Creates the offence of Receiving/disposing of stolen goods and states:

Whosoever receives, or disposes of, or attempts to dispose of, any property, the stealing whereof amounts to a serious indictable offence, knowing the same to have been stolen, shall be guilty of a serious indictable offence, and may be indicted, either as an accessory after the fact, or for a substantive offence, and in the latter case whether the principal offender has been previously tried or not, or is amenable to justice or not, and in either case is liable:

(a) if the property is a motor vehicle or a motor vehicle part, or a vessel or a vessel part, to imprisonment for 12 years, or
(b) in the case of any other property, to imprisonment for 10 years.

It is not uncommon for accused persons to take a motor vehicle, simply for the purposes of going for a “joy ride”. In such circumstances, the accused didn’t intent to permanently deprive the owner of the motor vehicle and the offence of Larceny could not be proved. It was necessary therefore for the legislature to create a separate offence of taking a conveyance without the consent of the owner and deeming such offence as being larceny. The penalty is the same as that for larceny.

Section 154A:
Creates the offence of taking a conveyance without the consent of the owner and states:

(1) Any person who:
(a)without having the consent of the owner or person in lawful possession of a conveyance, takes and drives it, or takes it for the purpose of driving it, or secreting it, or obtaining a reward for its restoration or pretended restoration, or for any other fraudulent purpose, or
(b) knowing that any conveyance has been taken without such consent, drives it or allows himself or herself to be carried in or on it,
shall be deemed to be guilty of larceny and liable to be indicted for that offence.

Part 4 Division 5A of the Crimes Act deals with offences relating to theft of motor vehicles and vessels including the interference with identifying marks on a vehicle.

Section 154F:
Creates the offence of stealing a motor vehicle or vessel and incurs a maximum penalty of 10 years. This penalty is far more severe than an offence under s.154A as the offender intends to permanently deprive the owner of the property.

Part 4AD – Division 2 deals with crimes against property generally and includes Sections 195 – 200.

The most common offence relative to damage to property is s.195 which states:

195 Destroying or damaging property
(1) A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable:
(a) to imprisonment for 5 years, or
(b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 10 years.

(1A) A person who, in the company of another person or persons, intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable:
(a) to imprisonment for 6 years, or
(b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 11 years.

(2) A person who, during a public disorder, intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable:
(a) to imprisonment for 7 years, or
(b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 12 years.

The other Sections briefly deal with the following:
S.196 Destroying or damaging property with intent to injure a person
S.197 Dishonestly destroying or damaging property
S.198 Destroying or damaging property with intention of endangering life
S.199 Threatening to destroy or damage property
S.200 Possession etc of explosive or other article with intent to destroy or damage property.