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Two men are facing criminal charges after an alleged home invasion that left the occupant severely injured.
According to police, emergency services were called to a home on Luxford Road in Letheridge Park near Mt Druitt in Sydney’s West at around 7.50pm on Christmas Eve, after reports of an altercation at the premises.
Police officers from Mt Druitt Local Area Command arrived to find a 40-year old man with severe head injuries. They commenced CPR on the man prior to the arrival of paramedics, who then transported him to hospital in a serious but stable condition.
A crime scene was established with forensic officers on the scene.
Following further inquiries, police arrested two men aged 27 and 40-years and conveyed them to Mt Druitt Police Station, where they were charged with specially aggravated break, enter and commit serious indictable offence and affray.
Police alleged the men attended the home shortly after 7.30pm, broke down the front door and repeatedly assaulted the occupant.
The basis for the special aggravation of the charge is alleged to be the infliction of grievous bodily harm on the complainant.
The men were refused police bail and will face Mt Druitt Local Court to answer to the allegations.
Offences relating to breaking and entering into homes and other premises in our state are primarily contained in sections 112 and 113 of the Crimes Act 1900 (NSW), each of which contain three discrete crimes.
Section 112 of the Act is titled ‘Breaking etc into any house etc and committing serious indictable offence.
Subsection 112(1) is the least serious category of the offence and carries a maximum penalty of 14 years in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
The Crimes Act does not define ‘broke’ or ‘break’.
However, the the courts have found it means to ‘forcibly gain entry’, and can include:
The courts have found that it may not include:
A ‘dwelling house’ is defined as:
A ‘serious indictable offence’ is one that carries a maximum penalty of at least 5 years in prison.
This encompasses most offences in the Crimes Act 1900, including stealing (also known as larceny) and assaults which case actual bodily harm, wounding or grievous bodily harm, and intentionally or recklessly damaging or destroying property.
The maximum penalty increases to 20 years in prison where the offence is committed in circumstances of aggravation, which is where you:
‘Offensive weapon or instrument’ means:
The maximum increases to 25 years where you:
A ‘dangerous weapon’ is defined as:
Section 113 of the Crimes Act is titled ‘Breaking etc into any house etc with intent to commit serious indictable offence’.
Subsection 113(1) is the least serious category of the offence and carries a maximum penalty of 10 years in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
The definitions of ‘break’, ‘dwelling house’ and ‘serious indictable offence’ are the same as those which apply to section 112 of the Act.
The maximum penalty increases to 14 years in prison where the offence is committed in circumstances of aggravation.
Those circumstances as well as the definition of ‘offensive weapon or instrument’ are the same as for section 112(2).
The maximum increases to 20 years where you:
A ‘dangerous weapon’ has the same meaning as that which applies to section 112(3).
If you have been charged with a break and enter offence and are able to raise evidence of a legal defence, the onus then shifts to the prosecution to prove beyond reasonable doubt that the defence does not apply to the circumstances of your case.
If it is unable to do so, you are entitled to an acquittal; in other words, a verdict of not guilty.
Legal defences to break and enter charges include sself-defence, duress, necessity and having a claim of right over the property.
Self-defence is where you believed your actions were necessary to defend yourself or another person, or to prevent the unlawful deprivation of your liberty or that of another person, or to protect your property from being taken, destroyed, damaged or interfered with, or to prevent criminal trespass to your land, or remove a person criminally trespassing, and your conduct was a reasonable response to the circumstances as you perceived them at the time.
Duress is where your conduct arose due to an imminent threat made to you or someone close to you, in circumstances where the threat was continuing and serious enough to justify your actions.
Necessity is where you engaged in your actions to avoid serious, irreversible consequences to you or someone you were bound to protect, you honestly and reasonably believed you or the other person were immediate danger and your actions were a reasonable and proportionate response to the danger.
And claim is right is a defence to the larceny element of any break and enter charge; for example, where the alleged serious indictable offence is stealing, or intending to steal, from the dwelling-house or building. You have a claim of right to property in the premises if you genuinely believed you were legally entitled to it.
If you are accused of a break and enter offence, it is important to secure the services of specialist criminal defence lawyers with a proven track record of defending and winning these cases.
The defence team at Sydney Criminal Lawyers has decades of experience having break and enter charges ‘dropped’ in a timely manner through identifying inconsistencies, deficiencies and other flaws in the prosecution cases, as well as available legal defences, and intensely negotiating withdrawal, as well as having cases thrown out of court if they proceed to a hearing or trial.
Our experienced lawyers have been able to win these types of cases where the prosecution cases initially appeared overwhelming, and even in circumstances where lawyers for co-defendants have been unable to achieve equivalent results despite the evidence against each accused appearing to be similar.
Where the prosecution evidence is overwhelming and the charges are extremely serious, our defence team has been able to achieve ‘non-conviction orders’; which is rare in these types of cases.
Our team has achieved this through tactical formulation, thorough preparation and effective execution of case strategies that achieve results.
So if you or a loved-one are going to court for a break and enter offence, call us anytime to arrange a consultation with one of our senior lawyers and let us look after the legal side of things, so you can get on with your life.
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