This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Property Damage
In the Australian Capital Territory, it is an offence to destroy or damage someone else’s property without their consent. A person can be charged with property damage under either the Criminal Code 2002 or the Crimes Act 1900. Police often look to charge a person with a property-damage offence that carries 10 years’ prison as a maximum penalty (under the Code) when the value of the property means that an offence with a two-year maximum (under the Act) is the appropriate charge.
The penalties depend on which charge has been brought, the manner of the damage, and the value of the property.
Recognising the difference between the two charges and making representations to the prosecution can lead to much reduced penalties for those who have to be sentenced for these types of matters.
Depending on the circumstances, destroying or damaging property can be classed as a family violence offence.
The Offence Of Damaging Property
If the value of the property does not exceed $5000, you will likely be charged under Section 116(3) of the Act which states: A person commits an offence if:
- (a) the person destroys or causes damage to property, other than by fire or explosive; and
- (b) the property belong to someone else or the person and someone else; and
- (c) the person intends to destroy or cause damage, or is reckless about destroying or causing damage, to the property; and
- (d) the damage to the property does not exceed $5000. The maximum penalty for this offence is 2 years imprisonment.
If the value of the damage to the property exceeds $5000 you will likely be charged under Section 403 of the Code which states: A person commits an offence if the person:
- (a) causes damage to property belonging to someone else; and
- (b) intends to cause, or is reckless about causing, damage to that property or any other property belonging to someone else. The maximum penalty for this offence is 10 years imprisonment.
The Act separates damaging or destroying property by fire or explosives and through other means (such as breaking, dinting or cracking). If you are alleged to have destroyed or damaged property by using fire or explosives, it is likely you will be charged with arson.
What Actions Might Constitute Damaging Property?
Examples of destroy or damage property offences are:
- breaking a window;
- dinting a car;
- putting a hole in a wall;
- breaking furniture;
- smashing a plate;
- defacing property with graffiti.
What The Police Must Prove
To find a person guilty of the offence there are two elements that the Prosecution must prove beyond a reasonable doubt:
- intended to cause, or recklessly caused, the destruction of or damage to property; and
- the property either belonged to someone else, or was jointly owned by the accused and someone else.
The onus is on the Prosecution to prove the value of the property.
Which Court Will Hear Your Matter?
If you have been charged with an offence under the Act the offence will be heard and determined in the ACT Magistrates Court.
If you have been charged with an offence under the Code, it must be heard and determined in the ACT Supreme Court, unless the defendant elects for the offence to remain in the ACT Magistrates Court.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.