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Intentionally Damaging Property (Wilful Damage)

Intentionally Damaging Property, commonly called Wilful Damage, is a serious offence in Queensland which, depending on the circumstances, can attract significant penalties. The seriousness of the offence is determined with reference to the type of property which is damaged and/or the method by which it is damaged.

Depending on the type of property which is damaged, and the way in which the damage is caused, you might also be charged with a more serious offence of Damaging Property in a “special case”.

Subsection 469(1) of the Criminal Code Act 1899 creates the offence:

“Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, unless otherwise stated, is a misdemeanour, and the person is liable, if no other punishment is provided, to imprisonment for 5 years.”

Wilful Damage is the simplest form of Damaging Property and is punishable by a maximum 5 years imprisonment, though fines and other penalties can also be imposed. In addition to any penalty it is common for a court to order that a person pay to fix the damage which they caused or pay compensation in an appropriate amount.

What Actions Might Constitute Wilful Damage?

The offence of wilful damage is commonly committed where a person engages in a deliberate act, either with the intention of causing damage to property or with reckless disregard as to the risk of damage.

An example of a deliberate act might be a person who uses a key or coin to scratch the paintwork on a car belonging to someone they dislike.

An example of a reckless act might be a person who uses a motor vehicle to “do doughnuts” on a sports field and thereby damages the grass and underlying irrigation infrastructure.

Will I Get A Criminal Conviction for Wilful Damage?

Depending on the circumstances it might be possible to avoid a criminal conviction for wilful damage, particularly where the offence is committed by a young person with no previous criminal convictions.

If you have been charged with wilful damage it is important that you seek legal advice and/or representation at an early stage in order to maximise your opportunity to avoid the recording of a criminal conviction against your name.

What the Police Must Prove

The damage that is caused has to be both wilful and unlawful which means that any damage caused as a result of an accident, or for which there is a lawful justification, will likely not give rise to an offence.

To convict you of the charge Wilful Damage, the police must prove that you:

  • did something which damaged someone else’s property; and
  • you did so intentionally and unlawfully.

Possible Defences for Wilful Damage

The following statutory defences might apply to a charge of wilful damage:

It is also a complete defence to a charge of wilful damage to establish, on the balance of probabilities, that the damage which was caused was accidental in circumstances where no reasonable person would foresee a risk of that damage arising from the offending conduct.

If you have been charged with wilful damage and you think you might have a defence to the charge, it is important that you obtain competent and specialist legal advice at an early stage.

Wilful Damage in Special Cases

There are 11 “special cases” of Damaging Property which are treated more seriously than Wilful Damage and some of which carry a maximum penalty of life imprisonment. In particular:

  • destroying or damaging premises by explosion (maximum penalty life imprisonment);
  • damaging seawalls (maximum penalty life imprisonment);
  • cause damage to a property in a cemetery or crematorium (maximum penalty 7 years imprisonment);
  • cause damage to an education institution (maximum penalty 7 years imprisonment);
  • cause damage by graffiti (maximum 7 years imprisonment);
  • cause damage to an official document, for example a title to land(maximum 7 years imprisonment);
  • cause damage to a will or other testamentary instrument (maximum penalty 14 years imprisonment);
  • cause damage to aircraft or railways (maximum penalty 14 years imprisonment in either case);
  • cause damage to a wreck or vessel in distress (maximum penalty 7 years imprisonment);
  • cause damage to “other things of special value” which means property such as, a lighting beacon used for nautical navigation, a water bore, or agricultural machinery (maximum penalty 7 years imprisonment).

Destroying or Damaging Premises by Explosion

Punishable by a maximum life imprisonment, this offence is committed where property is unlawfully and wilfully damaged by means of an explosive in circumstances which actually endanger someone’s life.

Damaging Seawalls

Punishable by a maximum penalty of life imprisonment, this offence is committed where the property which is damaged is a sea wall or other dam-like structure the destruction of which causes an actual danger of flooding or inundation.

Which Court Will Hear Your Matter?

A charge of wilful damage will often be heard in the Magistrates Court but it can be brought before the District Court in more serious circumstances. All special cases of wilful damage are heard in the District Court (including the two special cases which carry a maximum penalty of life imprisonment). If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

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...

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