As malicious damage to property is one of the most common criminal offences within the NSW system, it is integral that individuals are aware of what constitutes the crime and the implications of possible charges. The team at Hamilton Janke Lawyers are highly experienced in defending those accused of property offences, including malicious damage to property, and can provide expert advice and assistance to ensure you receive the best possible outcome.
As outlined under section 195 of the Crimes Act 1900,
“A person who intentionally or recklessly destroys or damages property belonging to another or belonging to that person and another is liable:
In NSW, malicious damage to property is no longer an explicit offence but is referred to as ‘intentionally or recklessly destroying or damaging property’. However, if an individual was said to have acted ‘maliciously’ and meant to cause harm, this constitutes their intent that must be proven to be found guilty of the offence.
In accordance with section 4 of the Crimes Act 1900, “property” includes:
Destruction or damage to a property refers to the ‘physical derangement’ of property, even if this damage is neither permanent nor long-lasting. For example, marking, defacing, removing, or altering the property can legally constitute damages to the property. Courts have ruled that damage can take the form of something interfering with something’s functionality, even temporarily.
This could include;
The court in which your matter is heard depends on the value of the property charged, as this influences the nature of the offence.
If the value of the property charged exceeds $5000, this is categorised as a ‘table 1’ indictable offence. This means that the matter may be heard in the District Court if the prosecution or the accused elects to hear it in a higher court. The case will be finalised in the local court if neither party elects.
If the value of the property charged does not exceed $5000, this is categorised as a ‘Table 2’ offence, meaning only the DPP can elect to have the matter dealt with in the District Court. It will be finalised in the local court if they choose not to do so.
If the matter is finalised in the local court, the maximum penalty is bound by the court’s limits, meaning the accused cannot be sentenced to a term greater than 2 years imprisonment for a single offence.
If an individual is found guilty of ‘destroying or damaging property’, they are liable to a maximum sentence of 5 years imprisonment; however, this is raised to 10 years if the damage is caused by means of fire or explosives. These penalties can only be sentenced if the matter is heard in the district court, whereas if the case is sentenced in the local court the maximum penalty is bound to 2 years imprisonment.
However, it is the role of the judge or prosecutor to determine an appropriate punishment based on the circumstances of the case and, as such, may sentence the accused to any of the following penalties;
If individuals are found guilty of ‘destroying or damaging property’ in aggravating circumstances, they may be liable to a greater maximum penalty in accordance with section 195.
The legislation states;
“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–
(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–
If you have been accused of malicious damage to property and believe there is a valid legal reason for your actions, you may be able to use a relevant legal defence which, if successful, can result in an acquittal or lesser charges. If you find yourself charged with a property offence, including the damage or destruction of property, the team at Hamilton Janke Lawyers can provide expert advice and guidance on possible defences to ensure you receive the best possible outcome.
Common legal defences to these charges include:
Necessity: If the accused feared irreparable harm from natural or human forces and feared harm or death that necessitated their actions.
Duress: If the accused was coerced or threatened into actions they would otherwise not have committed.
A Lack of Intent
Claim to Right of the Property; It is not a criminal offence to destroy or damage your own property
If you choose to plead guilty to a charge of malicious damage, this declares you agree with allegations made by the police, and you are responsible for the offence with which you are charged.
Depending on the nature of the offence and whether it was heard on indictment, a local magistrate, district or supreme court judge will determine the accused sentence upon entering a guilty plea. In accordance with the NSW judgement guidelines, entering a guilty plea will reduce the maximum sentence issued.
Pleading guilty early in proceedings provides the greatest opportunity for a mitigated sentence, with the current maximum discount available for an early plea being 25%. There may also be other discounts available on sentences for providing assistance to authorities, amongst other things.
If you disagree with the charges made against you, you have the option to plead not guilty. Upon entering a not-guilty plea, you will not be convicted of the offence unless the prosecution can prove the elements of the offence beyond a reasonable doubt.
If you choose to enter a not-guilty plea, the matter will likely proceed to a trial in which your case will be heard before a local court magistrate, a district or supreme court judge, and a panel of 12 jurors. This allows you to provide a defence to the charges made against you if you choose to do so. In these circumstances, an experienced criminal lawyer must guide you through the criminal proceedings and ensure you receive the best outcome.
Our team at Hamilton Janke Lawyers can offer expert advice and 24/7 support during this time. We can advise on the various possible defences to fraud charges that may apply to individual circumstances.
As a criminal offence, the burden of proof in NSW for destroying or damaging property lies with the prosecution.
As such, to be found guilty of the offence, the prosecution must prove beyond a reasonable doubt:
If the prosecution cannot establish these elements beyond a reasonable doubt, the accused must be found ‘not guilty’ and acquitted of charges.
If you are being charged with a criminal offence in NSW, it is vital that you seek legal advice and legal representation. An experienced criminal defence lawyer will be able to advise you on how to proceed and assist you through every step of the process. Contact our expert Criminal Defence Lawyers now.
Hamilton Janke Lawyers are one of the top rated Criminal Law Firms in the region. We treat every client with the respect and commitment they deserve. This commitment to our profession has earned us a reputation which we are very proud.