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Destroy / Damage Property

An offence of destroying or damage property is an offence under section 195(1) of the Crimes Act 1900 (NSW).

In order to prove the offence beyond a reasonable doubt, the prosecution must prove that a person:

  1. Intentionally or recklessly;
  2. Destroyed or damaged property;
  3. Belonging to another person

An offence of destroy or damage property is one of the most commonly prosecuted offences in the Local Court.

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What is property?

The definition as to what constitutes property under the Crimes Act is broad, and includes, “every description of real and personal property”. This can include money, valuable securities, and debts.

Some common examples of destroy or damage property offences that are prosecuted in the Local Court can include graffiti damage to buildings or causing damage to an ex-partner’s vehicle.

What constitutes damage to property?

Recently, the High Court of Australia in Grajewski v Director of Public Prosecutions [2019] HCA 8, held that damage to property within the meaning of section 195 of the Crimes Act requires proof that a person’s act or omission has occasioned some alteration of the physical integrity of the property, even if that alteration is only temporary. The majority of the High Court reasoned that, as a matter of ordinary English, a thing is not damaged if the physical integrity of the thing is not altered in any respect.

What is the maximum penalty?

For an offence in contravention of s195(1) of the Crimes Act, a Court is required to consider the value of the property that has been damaged or destroyed. This informs the maximum penalty that can be imposed for a destroy or damage property offence.

If the value of the property exceeds $5,000.00, then the offence is considered a ‘Table 1’ offence which means that either the DPP or an accused person can elect to have the offence dealt with in the District Court. If no election is made, then the matter will stay in the jurisdiction of the Local Court.

If the value of the property does not exceed $5,000.00, then the offence is considered a ‘Table 2’ offence. This means that only the DPP can elect to have your matter prosecuted in the District Court.

The offence is usually dealt with in the Local Court. If your matter stays in the Local Court then the maximum penalty that can be imposed is 24 months imprisonment or a fine of $2,200.00.

If your matter is to proceed to the District Court, then the maximum penalty that can be imposed is 5 years imprisonment.

If the destruction or damage is caused by means of fire or explosives, then the maximum penalty that could be imposed upon conviction is 10 years imprisonment.

Defences

As with any criminal offence, the prosecution must establish each element of the offence beyond a reasonable doubt.

If you have been charged with an offence of destroy or damage property you may have a defence available, depending on the circumstances of your case.

Some possible defences may include:

  1. A lack of intent that you either did not intend any damage to be caused or foresee the possibility that any damage would be caused;
  2. A claim of right to the property;
  3. Necessity;
  4. Duress; or
  5. Self-defence.

It is not an offence to destroy or damage your own property.

If you have been charged with an offence of destroy or damage property, then you should contact one of our experienced criminal lawyers to obtain advice on whether there is a defence that may be available to you.

Will I get a criminal record and will I go to jail?

An offence of destroy or damage property is an offence treated seriously by the Courts.

As can be seen from above, even if your matter stays in the jurisdiction of the Local Court, the maximum penalty that can be imposed is a term of imprisonment.

The penalty imposed will depend on a range factors including how the damage was caused, the manner in which the damage was caused, and whether an accused person has sought to re-pay or fix the damage that was caused.

There are also other aggravating features a court may consider, depending on the circumstances of your case.

It is possible to have your matter dealt with leniently, however, if you have been charged with an offence of destroy or damage property then you need to seek advice from one of our criminal defence lawyers who have a proven track record in dealing with these types of matters.

For the full range of penalties that can be imposed, see our Sentencing Options page.