Where an indictment for a specially aggravated break and enter offence under s 113(3) of the Crimes Act 1900 (NSW) alleges the circumstance of special aggravation of being armed with a dangerous weapon but fails to expressly allege the circumstance of aggravation of being armed with an offensive weapon required by s 113(2), the indictment is not fatally defective because the circumstance of aggravation is necessarily implied in the pleading of the circumstance of special aggravation, since a dangerous weapon is by definition an offensive weapon. A sentencing judge may take into account a circumstance of aggravation not alleged in the indictment provided it would not have warranted conviction for a more serious offence carrying a higher maximum penalty.
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