Break & Enter Lawyer
Cairns & Far North Queensland
You have been charged with unlawful entry, burglary, or break and enter. You may have spent a night in the watch-house. You are worried about whether you are going to jail. These charges carry serious maximum penalties — including life imprisonment for aggravated forms. But the maximum is rarely the question. The question is where your specific matter sits within the range that courts actually impose, and what can be done between now and your sentencing hearing to move the outcome toward the better end of that range.
The Charges — What You Are Actually Facing
The label "break and enter" is colloquial. The actual charges are set out in the Criminal Code Act 1899 (Qld), and the distinction between them determines the penalty range, the court that deals with the matter, and the likely outcome. Entering a dwelling — s 419 (burglary) This is the most serious category. A "dwelling" includes a house, unit, caravan, or any place used for sleeping. The penalties are tiered: s 419(1) — enter or be in a dwelling with intent to commit an indictable offence: 14 years maximum s 419(2) — entry by break into a dwelling: life imprisonment maximum s 419(3) — aggravated dwelling entry (at night, armed, using violence, in company, or causing damage): life imprisonment maximum s 419(5) — enter a dwelling and actually commit an indictable offence inside: life imprisonment maximum Courts treat residential burglary seriously. Queensland Sentencing Council data shows that 47.6% of adults sentenced for residential burglary receive immediate imprisonment, with a median sentence of 1.3 years. That statistic provides context — where your matter sits within it depends on the specific facts. Entering non-dwelling premises — s 421 (commercial / business) This covers shops, offices, warehouses, sheds, and other non-residential buildings: s 421(1) — enter non-dwelling premises with intent to commit an indictable offence: 10 years maximum s 421(2) — enter non-dwelling premises and actually commit an indictable offence inside: 14 years maximum s 421(3) — gain entry by break and commit an indictable offence in non-dwelling premises: life imprisonment maximum Commercial burglary is generally treated less seriously than residential offending. For first-offence matters in the Magistrates Court, suspended sentences, intensive correction orders, and community service are more common than immediate imprisonment — though nothing is automatic. Entering a vehicle — s 427 Unlawful entry of a vehicle with intent to commit an indictable offence: 10 years maximum , or 14 years if aggravated . This is a separate offence with a separate penalty structure from building entry. Sentencing Council data shows 85.9% of unlawful entry matters are dealt with in the Magistrates Court. Matters involving violence, weapons, night entry to a dwelling, or entry in company are more likely to be committed to the District Court — particularly where the Magistrates Court considers that its sentencing power is insufficient.
The Two Elements That Matter Most
Before any plea is entered, two elements of the charge require careful analysis — because both must be established by the prosecution, and both are frequently contested. Intent Under s 419, the prosecution must prove that you entered the premises with intent to commit an indictable offence — typically stealing. The intent must exist at the time of entry. If you entered without criminal intent and the situation changed, the charge may not be made out as framed. Intent is often inferred from circumstances — what was taken, what you were carrying, what you said in a police interview. But inference is not proof, and where the evidence of intent is genuinely ambiguous, that needs to be identified and addressed before a plea decision is made. Break Under s 418 of the Criminal Code , "break" is defined broadly. It is not limited to forced entry: Opening an unlocked door or window counts as a "break" Constructive breaking — gaining entry through deception or artifice — counts Partial entry counts (reaching through a window, for example) Entry through a passage left open for a specific purpose (e.g. a delivery entrance) may not constitute a "break" if the entry was within the scope of the permission The distinction matters because the break element triggers the more serious subsections of s 419 — including the life imprisonment maximum under s 419(2). Where the break element is genuinely in issue on the facts, that affects both the charge and the penalty range.
What Determines the Outcome
The charge sets the range. What is put before the court at sentencing determines where in that range the outcome falls. Prior criminal history is the single most aggravating factor. Queensland Sentencing Council data shows 74.7% of sentenced offenders had a prior criminal history. Courts treat repeat property offending as a pattern, and the submissions required to address that pattern are different in kind — not just degree — from a first-offence matter. Whether the premises was occupied. A residential burglary where occupants were home is treated significantly more seriously than an empty dwelling. The court's primary concern is the violation of personal safety and security. Whether violence or threats were involved. Any use of force or intimidation aggravates the offending and may trigger the s 419(3) aggravated provision — which carries a life imprisonment maximum. Whether permission existed. Section 419 requires entry into "the dwelling of another" — if you had a lawful right to be at the premises and there was no criminal intent, the charge may not be made out as framed. This arises most commonly in domestic or employment contexts where the alleged offender had a prior relationship with the occupant. The value of what was taken or damaged. While not the primary sentencing factor, the extent of loss or damage is considered by the court. Restitution — returning or paying for what was taken — is a mitigating factor that carries genuine weight. Early guilty plea. A sentencing discount applies for an early plea. The discount is meaningful, but what matters more is the quality of the sentencing submissions that accompany it. A bare plea without proper submissions produces a worse result than a well-prepared plea entered at the same stage. Rehabilitation steps. Engagement with counselling, drug and alcohol treatment, employment, or other rehabilitation since the offence is relevant to the court's assessment of reoffending risk. Sacha advises on what steps are worth taking — and what documentation the court needs to see.
Consequences Beyond the Sentence
A conviction for burglary or unlawful entry carries consequences beyond the immediate sentence: Criminal history. The conviction appears on a criminal history check — relevant to employment screening, Blue Card applications, and professional licensing. Employment. Regulated industries — security, childcare, aged care, government, healthcare — may refuse employment or registration based on a property offence conviction. Travel. Some countries, including the United States and Canada, refuse entry to people with certain criminal convictions. A burglary conviction may affect visa applications. Insurance. Some insurance policies require disclosure of criminal convictions. Non-disclosure can void a claim. Whether a conviction is recorded — and whether it can be avoided — depends on the charge, the circumstances, and the submissions. For first-offence commercial matters with strong mitigation, the court retains discretion not to record a conviction under section 12 of the Penalties and Sentences Act 1992 (Qld). For residential burglary, that discretion is more limited but not absent.
Frequently Asked Questions
Will I go to jail for break and enter?
It depends on the type of premises, the circumstances, and your history. For residential burglary, Queensland Sentencing Council data shows 47.6% of adults sentenced receive immediate imprisonment — so the risk is real, but it is not inevitable. For commercial premises, non-custodial outcomes are more common for first offenders. Sacha will give you an honest answer at the first consultation based on your specific charge and circumstances.
What is the difference between burglary and break and enter?
"Break and enter" is colloquial — it is not a formal charge name. The Criminal Code charge for a dwelling is s 419 (commonly called burglary). For non-dwelling premises it is s 421 (entering premises). For vehicles it is s 427. They carry different maximum penalties and engage different sentencing ranges.
Does it matter if nothing was actually stolen?
For s 419(1), the prosecution proves intent to commit an indictable offence at the time of entry — not that an offence was completed. The charge is made out at entry with intent. Whether anything was actually taken goes to sentencing, not guilt.
I had permission to be there — does that matter?
Yes. Section 419 requires that a person "enters or is in the dwelling of another" with intent to commit an indictable offence. If you had an existing right to be at the premises — for example, a domestic or employment relationship — the question of whether the dwelling was "the dwelling of another" and whether criminal intent existed at entry are both directly in issue. This arises most commonly in domestic situations or where the alleged offender had a prior relationship with the occupant. It needs to be assessed on the facts before any plea decision.
Is every break and enter charge heard in the District Court?
No. Sentencing Council data shows 85.9% of matters are dealt with in the Magistrates Court. The District Court is required only for aggravated forms — involving violence, weapons, night entry to a dwelling, entry in company, or damage of $30,000 or more.
Can the charge be reduced?
In some cases, yes. Where the evidence does not support the aggravated form, or where the intent or break element is weak, the charge may be negotiated to a less serious provision. The difference between s 419(3) (life maximum) and s 419(1) (14 years maximum) is significant in terms of the court's starting point. Sacha reviews every brief for this possibility.
What about restitution — does paying back help?
Yes. Restitution — returning property or compensating the victim — is a recognised mitigating factor. It does not eliminate the charge, but it demonstrates acknowledgment and reduces the court's assessment of harm. If restitution is feasible, Sacha will advise on the most effective way to present it.
Fixed Fees
- B&E — Non-dwelling / Commercial (Magistrates Court) — $3,300
- B&E — Dwelling / Residential, or Multiple Charges (Magistrates Court) — $4,800
- District Court — Indictable Matter — Contact for quote