Destroying or Damaging Property

The Law

Section 195 of the Crimes Act 1900 states:

(1) A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable:

1. to imprisonment for 5 years, or
2. if the destruction or damage is caused by means of fire or explosives, to imprisonment for 10 years.

(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:

1. to imprisonment for 6 years, or
2. (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 11 years.

(2) 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:

1. (a) to imprisonment for 7 years, or
2. (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 12 years.

Jurisdiction / Case Law

Where the value exceeds $5000, an offence of Destroying or damaging property is what is known as a Table 1 offence under the relevant legislation, which means it is to be dealt with in the Local Court unless an election is made for trial on indictment by the Department of Public Prosecutions (DPP).

Where property does not exceed $5000, an offence of Destroying or damaging property is what is known as a Table 2 offence under the relevant legislation, which means it is to be dealt with in the Local Court unless an election is made for trial on indictment by the Department of Public Prosecutions (DPP) or the accused.

As damage is not defined within the Crimes Act 1900 (NSW) there have been a number of judicial approaches to determine whether “damage” has been occasioned or not.

The case of Hammond v R [2013] NSWCCA 93 sets out the history or approaches taken towards this offence and gives very good indications as to what the courts have found to constitute malicious damage. What is clear from the authorities is that the damage or change to the property need not be permanent, hence if the functionality is deranged or interference with function occurs, this will satisfy the notion of destroy or damage. The case of Hammond concerned the spitting on a mental seat of a dock, wherein in that case this was held not to be malicious damage.

What must the prosecution prove?

Since Destroying or Damaging Property is a criminal offence, the burden of proof lies on the Prosecution.

The prosecution must prove the Accused’s guilt beyond reasonable doubt. That is a high standard of proof that the prosecution must achieve before someone can be convicted.

To establish Intentional or Reckless Property Damage/Destruction, the prosecution must prove each of the following matters beyond reasonable doubt:

• That you intentionally or recklessly did an act;
• That act caused a letter or document to be sent, delivered or received by someone;
• That letter or document threatened to either kill or inflict bodily harm on another person; and
• You knew the contents of the document or letter.

If you are charged with the offence of Intentionally/ Recklessly Destroying or Damaging Property, what are your options?

National Criminal Lawyers (NCL) have been successful in defending many Destroying or Damaging Property charges where the prosecution could not establish each of the elements to the required threshold of beyond reasonable doubt. We have also achieved several non-convictions for these charges for those who are found guilty or plead guilty.

It is for that reason that National Criminal Lawyers are the preferred specialist criminal solicitors in Sydney.

Our Senior Criminal Defence Lawyers, headed by Michael Moussa, one of Sydney’s Best Criminal Lawyers, will ensure that your case is closely examined to achieve the best of results.

NCL offer the following options for those who have been charged with Property Damage:

1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that the prosecution has not proven its case beyond reasonable doubt;
3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Please contact us now for more information about your options.