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MALICIOUS DAMAGE TO PROPERTY

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No punching bag around? Took it out on property? We get it. Get the best defence lawyers on your side

We all lose our temper on occasion and it can be very satisfying to punch a hole in the wall or throw something especially when we are tempted to hit someone – especially when there’s no punching bag around. However, if you destroy property (malicious damage), even if it is jointly owned by you, it is a criminal offence.¬†

In New South Wales, malicious damage is prosecuted under the Crimes Act 1900 (NSW). The main forms of destruction of property are outlined below. However, some forms of property damage such as graffiti are covered by legislation such as the Graffiti Control Act 2008 (NSW). The prosecution has the discretion to prosecute the matter in the Local Court via Police Prosecutors, or in the District Court via the Director of Public Prosecutions (DPP). Where the value of the property exceeds $5,000, the matter will be prosecuted in the District Court. if the value of the property is less than $5,000 but exceeds $2,000, it is up to the prosecutor which court the matter will be prosecuted in. If your matter is prosecuted in the Local Court, you will either receive a fine or term of imprisonment. 

In Australia, the prosecution must prove that you committed all elements of¬†the offence beyond a reasonable doubt.¬†Criminal charges and conviction can have a long-term impact on the rest of your life. For example, malicious damage charges are commonly connected to AVOs. This can negatively impact on your family law proceedings. Don’t risk it. Contact our expert criminal lawyers for a free initial consultation.

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    The offence

    Destroying or damaging property

    If you intentionally or recklessly destroy or damage property belonging to another person or yourself and another person, you are liable to:

    • Five years imprisonment, or
    • Ten years imprisonment¬†if the property damage is caused by fire or explosives

    if prosecuted in the District Court. 

    If prosecuted in the Local Court, you are liable to:

    • A fine of $11,000 or two years imprisonment if the property value exceeds $5,000, or
    • A fine of $5,500 or two years imprisonment if the property value does not exceed $5,000, or
    • A fine of $2,200 or two years imprisonment if the property value does not exceed $2,000.

    If you intentionally or recklessly destroy or damage property belonging to another person or yourself and another person, you are liable to:

    • Six years imprisonment, or
    • Eleven years imprisonment if the property damage is caused by fire or explosives

    If you, during a public disorder, intentionally or recklessly damage property belonging to another person or yourself and another person, you are liable to:

    • Seven years imprisonment, or
    • Twelve years imprisonment if the property damage is caused by fire or explosives

    if your matter is prosecuted in the District Court. 

    If prosecuted in the Local Court, you are liable to:

    • A fine of $11,000 or two years imprisonment if the property value exceeds $5,000, or
    • A fine of $5,500 or two years imprisonment if the property value does not exceed $5,000, or
    • A fine of $2,200 or two years imprisonment if the property value does not exceed $2,000.

    Destroying or damaging property with the intent to injure a person

    If you destroy or damage property, intending by the destruction or damage to cause bodily injury to another person, you are liable to:

    • Seven years imprisonment, or
    • Fourteen years imprisonment¬†if the damage or destruction is caused by fire or explosives

    If prosecuted in the District Court. 

    If prosecuted in the Local Court, you are liable to:

    • A fine of $11,000 or two years imprisonment.

    If you, during a public disorder, destroy or damage property, intending the destruction or damage to cause bodily injury to another person, you are liable to:

    • Nine years imprisonment, or
    • Sixteen years imprisonment¬†if the damage or destruction is caused by fire or explosives.

    if prosecuted in the District Court. 

    If prosecuted in the Local Court, you are liable to:

    • A fine of $11,000 or two years imprisonment.

     

    Dishonestly destroying or damaging property

    If you dishonestly, with a view to making a gain for yourself or another person, destroy or damage property, you are liable to:

    • Seven years imprisonment, or
    • Fourteen years imprisonment¬†if the damage or destruction is caused by fire or explosives

    if prosecuted in the District Court.

    If prosecuted in the Local Court, you are liable to:

    • A fine of $11,000 or two years imprisonment.

    If you, during a public disorder, dishonestly, with a view to making a gain for yourself or another person, you are liable to:

    • Nine years imprisonment, or
    • Sixteen years imprisonment¬†if the damage or destruction is caused by fire or explosives

    if prosecuted in the District Court.

    If prosecuted in the Local Court, you are liable to:

    • A fine of $11,000 or two years imprisonment.

    Damaging property with the intention of endangering life

    If you destroy or damage property, intending by the destruction or damage to endanger the life of another person, you are liable to imprisonment for 25 years. 

    This is a strictly indictable offence.

     

    Threatening to destroy or damage property

    If you, without lawful excuse, make a threat to another, with the intention of causing that other person to fear that the threat would be carried out:

    • To destroy or damage property belonging to that other person or a third person, or
    • To destroy or damage your¬†own property¬†which you know will or will likely endanger the life of, or cause bodily injury to that other person or a third person,¬†

    You are liable to imprisonment for five years if prosecuted in the District Court.

    If prosecuted in the Local Court, you are liable to:

    • A fine of $11,000 or two years imprisonment.

    If you, during a public disorder and without lawful excuse, make a threat to another person, with the intention of causing that other person to fear that the threat will be carried out:

    • To destroy or damage property belonging to that other person or a third person, or
    • To destroy or damage your property in a way that you know will or will likely endanger the life of, or cause body injury to that other person or a third person,¬†

    You are liable to imprisonment for seven years if prosecuted in the District Court.

    If prosecuted in the Local Court, you are liable to:

    • A fine of $11,000 or two years imprisonment.

    Summary Court Process for malicious damage matters

    Most malicious damage matters will be heard in the Local Court. 

    The Local Court process is as follows:

    1. Contact Jameson Law for a free initial consultation from our criminal defence lawyers 
    2. Mention hearing: This is the first court date for your matter. It essentially brings it to the attention of the court. You can plead guilty at this stage after receiving legal advice and the matter will be finalised. If you plead not guilty, the court will adjourn your matter and set another court date. The court will set a date for each party to produce their evidence (brief mention)
    3. You should use this time to gather any supporting evidence such as character references.
    4. Brief mention: Each party must produce their evidence to the court and each other. Another court date will be set for hearing
    5. Defended hearing: both parties will present their argument to the court. The court will make their decision and issue a sentence where appropriate.

    Local Court sentencing options

    There are many sentencing options available to the Local Court. 

    Pleading guilty at the earliest opportunity may entitle you to a 25% reduction in your sentence. However, you should NOT plead guilty until you have received legal advice, to ensure the best possible outcome for your matter.

    Section 10:

    A section 10 is the best possible outcome in the event the court finds you guilty of a malicious damage offence. There are three orders available to the court under section 10 of the Crimes (Sentencing and Procedure) Act where the court believes it is inappropriate to further punish an offender. 

    • Section 10 (1) (a)- dismissal with no conviction recorded
    • Section 10 (1) (b)- dismissal with no conviction on conditions set by the court. For example, not to commit an offence for a period of two years – a form of good behaviour bond
    • Section 10 (1) (c)- dismissal with no conviction on the condition that the offender enters into an intervention program. For example drug and alcohol counselling.¬†

    A section 10 is an acknowledgement of the court that you have committed an offence, however, the court is satisfied that it is out of character and you are unlikely to continue offending. It’s the court’s way of giving you a second chance.

    Before granting a section 10, the court will consider:

    • Your criminal history.¬†
    • Your character, antecedents, age, health and mental condition, etc
    • The trivial nature of the offence
    • Extenuating circumstances that lead to the offence being committed¬†
    • Any other matter the court considers relevant

    Intensive Correction Order:

    Intensive Corrections Orders are an option available to the court where a sentence of imprisonment is imposed on the condition that a defendant is of good behaviour and agrees to supervision by a community corrections officer rather than go to prison. 

    Additional conditions that may be imposed by the court include:

    • home detention
    • electronic monitoring
    • curfew
    • community service (up to 750 hours)
    • participation in rehabilitation or treatment programs, for example, drug treatment/counselling
    • no drugs or alcohol
    • refrain from certain relationships/associations, for example, drug dealer, etc.
    • ban from certain locations

    Community Correction Order:

    Community Corrections Orders are similar to Intensive Corrections Orders. The main exception being that a defendant needs to make themselves available to attend court at any time the court requires.

    Conditional Release Order:

    A Conditional Release Order is similar to an Intensive Corrections Order or Community Corrections Order. A Conditional Release Order can be issued with or without a conviction recorded.

    Section 32:

    A section 32 is a diversionary option available under the Mental Health (Forensic Provisions) Act 1990 (NSW). If a defendant is, or at the time the offence occurred:

    • cognitively impaired
    • suffering from mental illness
    • suffering from a mental condition for which treatment is available in a mental health facility

    The options available to a magistrate under a section 32 include:

    • adjourning the matter
    • granting the defendant bail
    • any other order the magistrate deems appropriate
    • dismissing the charges and discharging the defendant into the care of a responsible person (e.g. a parent) on the condition they attend a specified place for assessment or treatment.

    Indictable Court Process (District or Supreme Court)

    1. Contact Jameson Law for a free initial consultation
    2. Bail: An application for bail may need to be made if bail isn’t granted earlier
    3. Committal hearing: This a hearing to determine if there is enough evidence to proceed to trial. If there isn’t enough evidence, that is the end of the matter. If there is enough evidence, the matte is adjourned and a new court date is set.
    4. Case conferences: may take place between the committal and the trial. 
    5. Trial: Both parties will present their argument to the court. This can take a number of weeks or months depending on the seriousness of the matter and the number of charges. The jury will make a determination of guilt. If they find you guilty, the court will adjourn and a new date set for sentencing. This gives the judge an opportunity to review the evidence and work out the most appropriate sentence. The court may ask for additional information to inform sentencing such as pre-sentencing reports from Corrective Services, etc.
    6. Sentencing: The judge will hand down his or her sentence and their reasons for the decision.

    Disclaimer

    The above is general legal information and should not be considered legal advice. You should speak with one of our criminal lawyers for legal advice tailored to your specific legal matter. The penalties listed are maximum penalties. The courts deal with matters on a case by case basis. It should also be noted that there may be court delays due to COVID-19.

    Legislation: CRIMES ACT 1900

    (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.

    (1) A person who destroys or damages property, intending by the destruction or damage to cause bodily injury to 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 14 years.
    (2) A person who, during a public disorder, destroys or damages property, intending by the destruction or damage to cause bodily injury to another, is liable–
    (a) to imprisonment for 9 years, or
    (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 16 years.

    (1) A person who dishonestly, with a view to making a gain for that person or another, destroys or damages property 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 14 years.
    (2) A person who, during a public disorder, dishonestly, with a view to making a gain for that person or another, destroys or damages property is liable–
    (a) to imprisonment for 9 years, or
    (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 16 years.

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    Frequently Asked Questions.

    It may be possible, however, if your property is insured, your insurer will likely cover the cost of the repairs. Speak with your insurer to make sure you are covered. For further information about the legal process to recover costs, contact our office for a free initial consultation.

    For minor property damage such as having your car types slashed while parked at the railway station, you can make a report online using the Community Portal on the NSW Police website. You will be given a police event number for insurance purposes. For serious property damage due to an unfolding event, for example, a building on fire, you should contact 000 immediately. If there is no immediate threat to life, you should make a report at your nearest police station.

    After making a report to police, you should contact your insurance company to ensure you are covered and lodge your claim.

    There are defences to malicious damage, however, they can be difficult to prove. You will need evidence to support your defence. Some defences available include:

    Duress – For example, you were forced through threats or action by another person to commit the property damage or destruction.

    You are the sole owner of the property that has been damaged or destroyed and you did not damage or destroy it for dishonest reasons. 

    You didn’t intend to damage or destroy the property. For example, you fell asleep while smoking a cigarette.

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