Property Damage or Destruction

8 December 2021 in Criminal Law

Damaging or destroying property, commonly known as ‘malicious damage’, is set out as an offence under section 195(1) of the Crimes Act 1900 (NSW). It requires that:

• The property was intentionally or recklessly damaged; and
• The property belonged to another person; or
• The property was jointly owned with another person and they did not consent to the destruction or damage of the property.

What is damage to property?

For the purpose of section 195 of the Crimes Act, the High Court of Australia held that the person’s act or omission occasioned some alteration of the physical integrity of the property, even if that alteration is only temporary (Grajewski v Director of Public Prosecutions [2019] HCA 8).

The courts have also found that property is considered to be sufficiently damaged or destroyed when:

• There is a temporary impairment of usefulness;
• There is a temporary functional derangement;
• There is permanent damage; or
• The property is left imperfect or inoperative relative to its prior condition.

Examples of conduct seen as damage include:

• Deflating a person’s vehicles tires;
• Painting graffiti on walls or floors; and
• Urinating in a police cell to the extent that it cannot be used.

Intentionally or recklessly damage

Intentionally requires that the person was purposeful or wilful regarding the action which caused the damage or destruction to the property.

Recklessly requires that the person had the means to foresee the possibility of the damage or destruction to the property but proceeding regardless.

Defences to the destruction or damage of property

If the prosecution is able to satisfy the elements beyond a reasonable doubt, the defences available include:

1. Duress; Being forced to damage or destroy the property.
2. A claim of right to the property; A genuine and honest belief of a legal entitlement to the property.
3. Causation; or The prosecution cannot sufficiently prove the accused was responsible for the damage or destruction.
4. Intent. The prosecution cannot sufficiently prove the accused had the intent to damage or destroy the property or was not able to foresee the possibility of the damage or destruction as a result of the accused actions.

What is the maximum penalty for property damage?

The value of the property which has been damaged or destroyed is considered when determining the maximum penalty.

The prosecution or the accused can elect to have the matter dealt with in the District Court if the value of the property is greater than $5,000. Only the prosecution can elect to have the matter dealt with in the District Court if the value of the property is less than $5,000. If no election is made the matter will generally be dealt with in the Local Court.

If the matter is dealt with in the District Court the maximum penalty is 5 years imprisonment.

If the matter is dealt with in the Local Court and the value of the property is less than $5000, the maximum penalty if 1 year imprisonment and/or a fine of $5,500. If the value of the property is less than $2000, the maximum fine is up to $2,200. If the value of the property is more than $5000 the maximum penalty is 2 years imprisonment.

Aggravating factors, such as the use of fire or explosives in the destruction or damage of the property or being in the company of another person, may increase the maximum penalty.

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