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MALICIOUS DAMAGE

The offence of “malicious damage to property” is now recognised as “”intentionally/recklessly destroy or damage property” under section 195 of the Crimes Act 1900.

 

Section 195 provides “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.” If the offence is committed in company or during public disorder, the penalties are heavier.  

Damaging or destroying property simply means that you intended to cause the damage to the property or intended to destroy it. Damage refers to the ‘physical derangement’ of property, however, the damage does not have to be permanent or long lasting.

 

The damage may include marking, defacing, removing or altering the property. In the recent High Court case of Grajewski v Director of Public Prosecutions (NSW) [2019] HCA 8, the definition of damage and destruction of property in the context of secton 195 if the Crimes Act 1900 was considered. By majority, the Court held that damage to property within the meaning of s 195(1) requires proof that a person's act or omission has occasioned some alteration to the physical integrity of the property, even if only temporarily.

 

The majority 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. The majority held that nothing in the authorities justified an interpretation of the expression "destroys or damages" in s 195(1) as extending to conduct which does not in any respect alter the physical integrity of the thing said to be damaged.

To prove you are guilty of the offence of ‘Destroying or Damaging Property’, the prosecution must prove each of the following matters beyond reasonable doubt:

  • You destroyed or damaged property;

  • The property belonged to another person, or the accused and another person;

  • The destruction or damage was done deliberately or recklessly; and

  • That you were the person who committed the damage or destruction to property offence.

 

As with any criminal offence, the prosecution must prove all the elements of the offence beyond a reasonable doubt. If you have a defence available, the prosecution must negate that defence beyond reasonable doubt if the Court is to find you guilty. If you are charged with the offence of destroy or damage property, please contact KF Lawyers to arrange for a consultation to discuss potential defences and range of sentences that are available in your situation.

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