This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

Wilful Damage (Qld)


In Queensland, it is a criminal offence to damage property intentionally and without lawful excuse. This is known as wilful damage and can include damage done to public property, commercial property and private property. The offence is governed by section 469 of the Criminal Code Act 1899.  In other states and territories, this offence is referred to as criminal damage and property damage. There is no longer a specific offence known as malicious damage, though the term is still widely used.

Wilful damage is one of the most commonly reported criminal offences. It incorporates a wide range of acts including graffiti, vandalism and deliberate or reckless destruction of property. In some circumstances, a person can even be found guilty of damaging their own property, such as where a person deliberately damages their car so as to make an insurance claim.

An item need not be destroyed completely in order for the offence of wilful damage or malicious damage to be made out. It is enough that the item is rendered “imperfect or inoperative”:

Defences to wilful damage

A person charged with a wilful damage offence may validly argue any of the below defences.

Absence of intent

To be found guilty of wilful damage beyond a reasonable doubt, a person must have caused the damage intentionally. If the damage was an accident, it does not amount to an offence.

Consent

It is a defence to wilful damage if the owner of the property consented to the person damaging it. An example of this would be where a neighbour agrees to let someone break up old furniture to use as firewood.

Extraordinary emergency

Another defence to wilful damage is extraordinary emergency. It is not an offence to damage property when you are in danger of death or serious injury. An example of this would be ripping up a person’s clothing to bandage a profusely bleeding wound.

Compulsion or duress

Compulsion or duress is also a defence to wilful damage. If a woman in a domestic violence relationship damages property because her abusive partner demands that she do so and threatens her with violence if she does not comply, then she will not be found guilty of wilful damage.

Penalties for wilful damage

In Queensland, there is a range of maximum penalties specified for the offence of wilful damage, depending on the nature of the property involved and the way the damage was done. Offences against section 469 of the Act range from minor offences to extremely serious offences that carry a maximum penalty of life imprisonment.

The maximum penalty for wilful damage that does not fall into any special category is imprisonment for five years. Destroying or damaging premises by explosion, where someone is present in the property and/or a person’s life is endangered, carries a maximum penalty of life imprisonment.

Which court will deal with the offence?

There are different categories of offences in Queensland, which are heard in different courts. Misdemeanours, also known as summary offences, are heard in the Magistrates Court, and crimes (or indictable offences) are heard in the District Court or the Supreme Court. In some cases, parties to a matter have a choice as to whether to consent to the matter being heard in the Magistrates Court or whether to insist that it be dealt with on indictment in a higher court.

The simple offence of wilful damage is a misdemeanour and is heard in the Magistrates Court.  All of the other wilful damage offences listed above are crimes and may be heard by the higher courts.

Restitution Orders

When a person is found guilty of a property damage offence, the court can order them to pay restitution as well as imposing a sentence. This means the offender is ordered to repay the victim the cost of the damage they caused. This can be done in a lump sum or in instalments, depending on the offender’s financial situation. However, restitution orders are generally only made against offenders who have the capacity to pay. As “malicious damage” offences are frequently committed by juveniles, who have no source of income, there are many cases where a finding of guilt is recorded but no restitution order is made.

If you require legal advice or representation in relation to a “malicious damage” offence, please contact Armstrong Legal.

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.

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