Malicious Damage of Property (NSW)

In NSW, Damaging or Destroying Property (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’.

What is Destroying or Damaging Property?

The offence of Malicious Damage is contained in section 195 of the Crimes Act 1900 (NSW) 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.

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.

The following acts constitute Destroying or Damaging Property:

• Breaking someone’s iphone;
• Smashing a window;
• Punching a hole in a wall;

What Must be Proven?

For a person to be found guilty 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.

If the Prosecution does not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear the 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.

Possible Defences to Destroying or Damaging Property

The following defences may be available:

• To maintain your innocence if you did not commit the act;
• To argue that you did not have the intent to damage or destroy the property;
• To argue that you were not reckless to the fact that the property may be damaged or destroyed;
• To argue that the property was not damaged or destroyed;
• The property was solely your property; or
• To raise self-defence, self-defence of another, necessity or duress as the reason for your conduct.

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.

Common Questions about Destroying or Damaging Property

Will I receive a criminal conviction?

A conviction and criminal record for this offence is likely, but depending on the circumstances, the value of the item damaged, and your criminal history, you may be able to obtain no conviction. 

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

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10 

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 Destroying or Damaging Property might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover a conviction for an offence of violence can completely 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.

Will I go to Gaol?

The maximum penalty is 5 years Gaol, so it is possible, but whether it is likely will depend on a range of factors. It is best to get expert advice to assist you in achieving the best possible sentence outcome.

The property that I damaged was  jointly owned. Am I still guilty?

The short answer is yes. It is still an offence if you damage property that is owned by you and another person – for example, if you punch a wall in a home that you and your wife own. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.