Intentionally or recklessly destroy property (Malicious Damage)

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What is Intentionally or recklessly destroy property ?

Destroying or damaging property is found under the Crimes Act 1900 (NSW) at Act Sect 195. A person who intentionally or recklessly destroys or damages property belonging to another is guilty of this offence:

Case law/Jurisdiction

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 functionally 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.

The Law

The offence of Destroying or Damaging Property is contained in section 195 of the Crimes Act 1900 which states:

(1) 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.

(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:

(a) to imprisonment for 6 years, or

(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:

(a) to imprisonment for 7 years, or

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

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 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 maliciously, with intent or recklessness.
  • They will also need to prove that you were the person who committed the malicious damage to property offence.

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

National Criminal Lawyers have been successful in defending a number of Destroying or Damaging Property charges where the prosecution could not establish each of the elements of Destroying or Damaging Property. We have also achieved a number of non-convictions for Destroying or Damaging Property charges.

NCL offer the following options for those who have been charged with Destroying or Damaging Property:

  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 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.

Pleading Guilty

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining a non-conviction or section 10.

Maximum Penalties

Destroying or Damaging Property can be punished with a prison sentence of up to 2 years (If heard in the Local Court) or 5 years (If heard in the District Court),

If the damage is caused by fire or explosives offenders face up to 10 years imprisonment.

If a person carries out the crime in the company of another person the maximum imprisonment is for 6 years, or 11 years if the destruction or damage is caused by means of fire or explosives.

If a person carries out the crime in during a public disorder or riot the maximum imprisonment is for 7 years, or 12 years if the destruction or damage is caused by means of fire or explosives.

Pleading Not Guilty

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.

A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.

National Criminal Lawyers have defended thousands of people charged with Destroying or Damaging Property and are experts at these hearings.

Defences

Sometimes the elements of Destroying or Damaging Property can be established however there also may exist a defence at law. Some of the possible defences available for those charged with  Destroying or Damaging Property can include:

  • Duress-If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”
  • Necessity – If your actions were necessary to prevent a greater harm from occurring, you may have the defence of-“Necessity”.
  • Self-defence – If you were defending yourself or another OR yours or another’s property you may have a Defence of “Self-Defence”

Statistics

The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:

“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.

For offenders who Destroyed or damaged property (under $2000.00) 37% of offenders received a fine.

For Offenders who Destroyed or damaged property (between $2,000 and up to $5,000) 29% received a Bond and 28% received a fine

For offenders who Destroyed or damaged property (between $5,000 and up to $15,000) 25% got a Bond and 27% received a fine

For offenders who Destroyed or damaged property (above $15,000) 41% received a Bond and 23% served a full-time prison sentence

Possible Penalty's

In NSW, a court can impose any of the following penalties for a Destroying or Damaging Property charge.

  • Prison sentence
  • Home Detention
  • Intensive correction order (previously periodic detention)
  • Suspended sentence
  • Community service order (CSO)
  • Good behaviour bond
  • Fine
  • Section 10

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

  • Full time Imprisonment
  • New ICO (ICO) with a home detention condition available
  • New Community Correction Order (CCO)
  • Fine
  • New Conditional release Order (CRO)

Case Studies

Our client and the alleged victim were arguing at their accommodation. There were allegations that our client pushed the alleged victim and damaged her wall. Whilst representing our client in his hearing, we were able to cast doubt on the testimony of the alleged victim. Our client was found not guilty of the charge of intentionally/recklessly damaging property.

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. We get the results

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. We give a Senior Defence Lawyer guarantee

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

If you have been charged with any Intentionally or recklessly destroy property offence our Team and National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.

Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

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