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Malicious damage of property

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton
Craig Robinson
Andrew Tiedt
Andrew Fraser
Russell Boyd
Mariah Maltezos
Sarah Marinovic
Michael Hempsall
Will Del Din
Will Del Din
Trudie Cameron

In NSW, malicious damage carries a maximum penalty of 5 years imprisonment. Where the offence is committed in company with another person, the maximum penalty is 6 years imprisonment.

There are different maximum penalties if the destruction or damage is caused by means of fire or explosives, or during a 'public disorder'.

In NSW, a court can impose any of the following penalties for an malicious damage to property charge.

You'll find a brief description of each of these penalties at the bottom of this page.

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for malicious damage might jeopardise your job or make it difficult to obtain visas for overseas travel. A conviction for an offence of violence can rule out certain career paths such as teaching and a range of government employment options. Violent offences may also result in sentences that include imprisonment even where an individual has no previous convictions.

Such offences can be complicated if there are aggravating factors. It is important to get legal advice at an early stage to ascertain precisely what the consequences of a conviction may be and whether you have a defence to the charge. It is very important that you obtain legal advice before you take part in any police record of interview. Call us on 1300 168 315 for urgent advice.


THE OFFENCE OF MALICIOUS DAMAGE

The offence of Malicious Damage is contained in section 195 of the Crimes Act 1900 which states:

  1. (1) A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable:
    1. (a) to imprisonment for 5 years, or
    2. (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 10 years.
  2. (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. (a) 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.
  3. (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.

WHAT IS 'PROPERTY'?

Property is defined in section 4 of the Crimes Act 1900. It includes:

  • All real and personal property;
  • Money, valuable securities, debts, and legacies;
  • 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.

WILL I GET A CRIMINAL CONVICTION FROM A MALICIOUS DAMAGE CHARGE?

Yes. A criminal conviction is very likely unless the Court is convinced that they should exercise their discretion not to convict you of the offence.

WHAT ACTIONS MIGHT CONSTITUTE"MALICIOUS DAMAGE"?

  • The offence means that you intended to damage or destroy another person's property.
  • Damage to property can include acts preventing use of property, such as deleting items from a computer hard-drive.
  • Also may relate to defacing, altering or marking property. It does not have to permanently affect the item.

WHICH COURT WILL HEAR YOUR MATTER?

Where the value of the property charged exceeds $5000, this matter is a Table 1 offence which means that either the DPP or an accused can elect to have the matter dealt with in the District Court. If no election is made, the matter will be dealt with in the Local Court.

Where the value of the property charged does not exceed $5000, this matter is a Table 2 offence which means that only the DPP can elect to have the matter dealt with in the District Court. If no election is made, the matter will be dealt with in the Local Court.

If the matter is dealt with in the Local Court, the maximum penalty for this offence if you are convicted in the Local Court is:

Damage to property less than $5000

  • A maximum term of imprisonment of 12 months;
  • A maximum fine of $5,500

Damage to property over $5000

  • A maximum term of imprisonment of 24 months;
  • A maximum fine of $11,000

WHAT THE POLICE MUST PROVE

To convict you of a malicious damage to property charge, the police must prove each of the following matters beyond a 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.

CAN I PAY A GREATER FINE TO AVOID BEING CONVICTED?

No, it is not possible to bargain with the court that you would pay a larger fine to avoid a criminal conviction. If the court deals with you under section 10 there will be no fine, but there may be court costs (normally less than $80).


Possible defences for Malicious Damage of property:

Possible defences to a malicious damage to property charge include but are not limited to:

Note: You cannot be convicted of malicious damage to property if you do not show the required intent. This means that you will not be convicted of the offence if the property was damaged accidentally.

Types of penalties:

Jail for an malicious damage to property charge: This is the most serious penalty for the charge of malicious damage to property and involves full time detention in a correctional facility. Read more.

Intensive correction order for an malicious damage to property charge (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Suspended sentence for an malicious damage to property charge: This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Community service order for an malicious damage to property charge. (CSO): This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Good behaviour bond for an malicious damage to property charge: This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.

Fines for an malicious damage to property charge: When deciding the amount of a fine for a malicious damage to property charge the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10 for an malicious damage to property charge: avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.


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