When Does Trespass Become a Serious Criminal Charge in NSW?

Most people think of trespassing as a minor matter — walking onto private property or staying somewhere you shouldn’t.

But under NSW law, certain forms of trespass can escalate into serious criminal offences carrying years of imprisonment.

At LY Lawyers, we regularly defend clients charged with trespass, unlawful entry, and break-and-enter offences. This article explains where the line is drawn between a minor infringement and a serious criminal charge — and what you can do if you’re accused.

What Is Considered Trespass in NSW?

The starting point is the Inclosed Lands Protection Act 1901 (NSW), which makes it an offence to enter inclosed lands without consent or to remain there after being asked to leave.

Inclosed lands include private property, schools, hospitals, construction sites, and fenced or otherwise enclosed areas.

Penalties for Basic Trespass

• Prescribed premises (such as schools or hospitals): up to 10 penalty units (around $1,100).
• Other inclosed lands: up to 5 penalty units (around $550).
  (1 penalty unit = $110 in NSW.)

Trespass of this kind is a summary offence — it is dealt with in the Local Court and normally attracts a fine, not jail time.

When Does Trespass Become a Serious Offence?

Trespass crosses into criminal territory when it involves aggravating factors such as safety risks, property damage, intent to commit another offence, or entry into a dwelling.

1. Aggravated Unlawful Entry — Inclosed Lands Protection Act 1901 (NSW) s 4B

The law treats trespass more seriously if it occurs on land where a business or undertaking is conducted and the person:

• Interferes with the business, or intends to;
• Creates a serious safety risk to people on the land;
• Introduces a biosecurity risk (for example, contaminating agricultural land);
• Carries weapons or firearms without lawful excuse;
• Damages property or releases livestock; or
• Acts in company with others during the unlawful entry.

Penalties (s 4B):

• On agricultural land:
  • Up to 12 months’ imprisonment or 120 penalty units (approx. $13,200);
  • Up to 3 years’ imprisonment or 200 penalty units (approx. $22,000) if in company or posing safety risks.
• On other business land: up to 50 penalty units (approx. $5,500).

At this point, the conduct shifts from a civil or minor regulatory issue to a criminal offence punishable by imprisonment.

2. When Trespass Becomes “Break and Enter” or “Housebreaking”

If trespass involves entry into a dwelling or building with criminal intent, it may be prosecuted under the Crimes Act 1900 (NSW) as a serious indictable offence.

These offences are no longer minor trespass — they are felonies carrying heavy penalties and are usually heard in the District Court.

a, Enter Dwelling with Intent — s 111

Entering a house or dwelling with intent to commit a serious indictable offence (an offence punishable by at least five years’ imprisonment)

• Maximum penalty: 10 years’ imprisonment.
• Aggravated form: 14 years (e.g., in company, armed, or if violence/threats are used).

b, Break, Enter and Commit a Serious Indictable Offence — s 112

Breaking into and entering a building or dwelling, then committing or intending to commit a serious indictable offence.

• Maximum penalty: 14 years.
• Aggravated: 20 years (use of weapon, in company, or violence).
• Specially aggravated: 25 years (injury, weapon use, or other extreme factors).

c, Break, Enter and Assault with Intent to Murder — s 110

If the entry involves violence or intent to kill, the offence carries a maximum of 25 years’ imprisonment.

The Judicial Commission of NSW notes that sentencing for break-and-enter offences depends on intent, damage, degree of violence, and prior criminal history — reflecting their classification as serious indictable crimes.

Other Offences Commonly Charged with Trespass

Police often add or substitute other charges alongside trespass, depending on the behaviour involved:

 

Offence	Relevant Law	Maximum Penalty
Affray – using or threatening unlawful violence in public	Crimes Act 1900 (NSW) s 93C	10 years
Malicious Damage / Property Damage	Crimes Act 1900 (NSW) s 195	5 years (up to 10 years if fire/explosion)
Stalking or Intimidation	Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13	5 years and/or 50 penalty units
Contravening an AVO (trespass in a domestic context)	CDPVA s 14	2–5 years (depending on conduct)

 

How Prosecutors Prove Serious Trespass or Break & Enter

To secure a conviction for aggravated trespass or break-and-enter, the prosecution must prove intent and circumstances of aggravation beyond reasonable doubt. They rely on:

• CCTV footage and forensic evidence of entry.
• Possession of tools, weapons, or stolen property.
• Messages or admissions showing premeditation.
• Witness statements about the offender’s conduct.

The presence of tools, accomplices, or safety risks can turn a simple trespass into a serious indictable offence.

Common Legal Defences

Several defences may apply depending on the charge:

• Lack of intent: No intention to commit a further offence upon entry.
• Consent: The accused had permission or an implied licence to enter.
• No “break” or entry: Entry was lawful or the premises were not “inclosed.”
• Mistake of fact: Belief in right to enter (for example, misunderstanding boundaries).
• Duress or necessity: Actions were compelled or necessary to prevent harm.
• Identification issues: Police evidence does not establish the accused was present.

A strong defence often focuses on the mental element (intent) — which is what separates minor trespass from major criminal liability.

 

Penalties Summary

 

Offence	Legislation	Maximum Penalty
Basic trespass (inclosed lands)	Inclosed Lands Protection Act 1901 (NSW) s 4	5–10 penalty units
Offensive conduct while on inclosed lands	s 4A	10–20 penalty units
Aggravated unlawful entry	s 4B	Up to 3 years imprisonment
Enter dwelling with intent	Crimes Act 1900 (NSW) s 111	10 years (14 if aggravated)
Break & enter and commit SIO	s 112	14–25 years (depending on aggravation)
Break & enter & assault with intent to murder	s 110	25 years

 

FAQs

1. Can I be charged if I accidentally enter private property?

Usually no, unless you refuse to leave after being asked or your actions are reckless or intimidating.

2. What if I only entered to retrieve my property?

If done without consent, it can still be trespass — but genuine retrieval can mitigate penalties.

3. Do I have to break something for “break and enter”?

No. Opening a closed but unlocked door or window can satisfy the “break” element.

4. Is trespassing during a protest illegal?

Yes, if on inclosed or restricted land without consent. It may also become aggravated if it disrupts business or endangers safety.

5. Can trespassing be linked to domestic violence?

Yes. If the conduct breaches an AVO or intimidates a protected person, additional domestic-violence charges apply.

6. What should I do if police contact me about a trespass allegation?

Exercise your right to silence and contact a criminal defence lawyer before speaking to police.

What To Do If You’re Charged with Trespass or Unlawful Entry

1. Seek legal advice immediately.
   Don’t answr questions without representation. Statements can be misinterpreted.
2. Preserve evidence.
   Keep any messages, photos, or witness details that support your version of events.
3. Comply with bail conditions.
   Avoid returning to the property or contacting complainants.
4. Engage a specialist defence team.
   LY Lawyers can challenge the prosecution’s intent evidence, negotiate charge reductions, and represent you in court.

How LY Lawyers Can Help

At LY Lawyers, we have over 20 years of experience defending clients in trespass, unlawful entry, and break & enter cases across NSW.

We offer:

• Strategic case assessment and tailored legal advice.
• Experienced court representation in Local, District and Supreme Courts.
• Negotiation and plea-reduction strategies where appropriate.
• Proven results in achieving charge withdrawals, dismissals, and reduced penalties.

We understand how a trespass allegation can quickly escalate — and we’re here to protect your rights from the start.

Conclusion

While ordinary trespass may seem minor, in NSW it can quickly become a serious criminal offence when aggravating factors such as intent, safety risks, or unlawful entry into a dwelling are present.

Understanding the difference between a civil trespass and a criminal housebreaking charge is crucial — as the penalties range from small fines to up to 25 years in prison.

📞 Contact LY Lawyers today for expert legal representation and personalised advice on trespass, break & enter, and related criminal charges.