Property Damage Offences

If you have been charged with a property damage offence, the Local Court Lawyers can help. Crimes involving destroying or damaging property are taken very seriously by the local court and can carry a maximum penalty of 5 years imprisonment. If the crime is committed in the company of 1 or more people the maximum penalty may be as high as 6 years imprisonment. There are longer terms of imprisonment if the destruction or damage of property is caused by fire or explosives, or if the offence occurs during a ‘public disorder’.

A property damage conviction has the potential to adversely impact your reputation, your chances of gaining employment or result in your termination in circumstances where your job demands that you have no criminal record. A conviction may also hinder your chances of obtaining a visa for overseas travel.

It is rarely in your best interests to agree to a police interview (or ERISP) upon being charged with a property damage offence until you have sought competent legal advice.  Provide your name and address and ask to speak to a lawyer before agreeing an interview, or “to assisting police with their enquiries”.

What is a property damage offence?

The offence of ‘malicious damage’ is defined in section 195 of the Crimes Act 1900 and provides that the offence of destroying or damaging property occurs when a person intentionally or recklessly destroys or damages property belonging to another.

What is property?

“Property” is defined in section 4 of the Crimes Act 1900 and includes: –

• Real (e.g. land or buildings) and personal property (e.g. vehicles, furniture, boats, phones, computers etc.);
• Money;
• Valuable securities, debts, and legacies; and
• All deeds and instruments relating to, or evidencing the title or right to any property, or giving a right to recover or receive any money or goods.

What must the prosecution prove?

For the offence to be proved the prosecution must prove the following: –

1. That you damaged or destroyed the property. Damage refers to the physical derangement of the property and may include breaking an object or vandalising property. It also includes actions such as deleting items from a hard-drive, defacing, altering or marking property. The damage DOES NOT have to be permanent; and
2. The property belonged to another person other than the accused. However, if you are a co-owner of the property you may still be liable; and
3. You intended to cause the damage or destruction, or you were reckless as to whether the damage or destruction could be caused by your actions. This means that you should have been able to foresee that your actions would result in destroying or damaging the property. You may have a defence if you can prove that your actions were a mistake or an accident, for example, tripping and stepping on someone’s phone or hitting a golf ball through somebody’s window (having a defence to a criminal action doesn’t always mean you are not liable for damages in a civil action, to recover losses flowing from the damage you caused).

Threaten to destroy or damage property

It is an offence to threaten to damage or destroy the property of another with the intention of causing that person to fear that the threat would be carried out. This includes knowing that if the person were to carry out the threat it will or is likely to endanger the life or to cause bodily injury to another person. This offence carries a maximum term of imprisonment of 5 years or if the threat to damage or destroy occurs during a ‘public disorder’ then the maximum term increases to 6 years.

Domestic Violence

A ‘personal violence offence’ is the term given to a group of criminal offences in the Crimes Act 1900 (NSW) and the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

If you are found guilty of malicious damage and the property owner is a person you are in a “domestic relationship with”, then it becomes a domestic violence offence. This makes the offence more serious and includes the legislative requirement of the making of an Apprehended Domestic Violence Order (ADVO).

The Act defines the meaning of domestic relationship broadly. A person is in a domestic relationship with another person if the person is or has been:

• married to
• in a de facto relationship with
• in an intimate personal relationship with
• in a relationship involving his or her dependence on the ongoing paid or unpaid care of
• a relative of the other person.

Two people are also in a domestic relationship when they live, or have lived together:

• in the same household
• as long-term residents in the same residential facility (excluding correctional and detention centres)

If this is a situation in which you find yourself, prompt legal representation is strongly advised.