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Malicious damage of property

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

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 will 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:

The common ways to defend this charge are:

  • 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.


Types of penalties:

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

Home Detention: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. 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: As a result of amended legislation this penalty was repealed on 24 September 2018. 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): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). 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: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). 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.

Community Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.

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

Section 10A: A section 10A is a conviction, with no other penalty attached to it. Read more.

Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. 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.


where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

Why Choose Armstrong Legal?

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