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Criminal Damage (WA)


A person can be charged with criminal damage contrary to section 444 of the Criminal Code Act Compilation Act 1913 when it is alleged that they have willfully and unlawfully destroyed, or damaged, any property. In WA, criminal damage is an ‘either way’ offence, meaning that it can be dealt with in the summary jurisdiction or on indictment. This article outlines the offence of criminal damage in WA.

What is property?

“Property” is defined in section 1 of the Criminal Code as including ‘real and personal property and everything, animate and inanimate, capable of being the subject of ownership’.

What is damage?

The term “damage” can be given its ordinary everyday meaning in relation to inanimate objects. However, section 1 of the Criminal Code sets out that “damage” in relation to animate property (property that is living) includes injury.

Section 1 also sets out that “damage” in relation to a record includes dealing with a record so as to obliterate, render illegible or irrecoverable the information that is stored upon that record or to deal with a record so that it cannot convey meaning in a visible, or recoverable, form.

Either way offence

The offence of criminal damage is classified as an either way offence. This means it can either be dealt with within the summary jurisdiction of the Magistrates Court or Children’s Court of Western Australia or on indictment in the District Court of Western Australia.

Penalties

The maximum penalties that can be imposed by the court for a criminal damage offence depends on whether the matter is heard in the Magistrates Court or the District Court. The penalties imposed will also vary according to the type and extent of the damage caused to the property and the circumstances of the offending.

Summary jurisdiction offence of criminal damage

A matter can only be heard in the Magistrates Court where the damage to property was not caused by fire and where that damage does not exceed the value of $50,000.00.

If the matter is heard in the Magistrates Court of Western Australia, and the offender is found guilty of the offence, the court can impose a maximum fine of up to $36,000.00. The court could also impose a maximum term of imprisonment for a period of up to three years.

Indictable offence of criminal damage

When a criminal damage matter is heard in the District Court of Western Australia, much more severe penalties apply.

Under section 444(1)(a) of the Criminal Code, where property is damaged by fire the maximum penalty that can be imposed is life imprisonment. Where property damage was not caused by fire, but the value of the damage caused exceeds $50,000.00, the maximum penalty that can be imposed imprisonment for 10 years.

If the offence was committed in circumstances of aggravation the maximum penalty that can be imposed is imprisonment for 14 years.

Circumstances of aggravation are defined in section 221 of the Criminal Code and include circumstances where:

  1. The offender is in a family and domestic relationship with the victim of the offence;
  2. A child was present when the offence was committed;
  3. The conduct of the offender in committing the offence constituted a breach of an order made or registered under the Restraining Orders Act 1997or to which that Act appliesor
  4. The victim is of or over the age of 60 years.

Alternative offence of damaging property

An alternative offence to criminal damage is set out in Section 445 of the Criminal Code. This offence is damaging property. A person will be charged with this alternate offence where they have unlawfully destroyed or damaged the property of another person without that person’s consent.

Unlike criminal damage, the offence of damaging property can only be dealt with summarily (within the jurisdiction of the Magistrates Court) and the maximum penalty the court can impose are less severe being a maximum of two years imprisonment and a fine of up to $24,000.00.

Often an accused person will be charged with this alternate offence where it cannot be established that the criminal damage occurred wilfully.

 Conclusion

 A person will be charged with criminal damage contrary to section 444 of the Criminal Code when it is alleged that the person has wilfully and unlawfully destroyed, or damaged, any property. The maximum penalties that can be imposed will depend on whether the matter is heard in the Magistrates Court or the District Court.

In circumstances where it cannot be established that an act of criminal damage occurred wilfully, the alleged offender may be charged with an alternate offence pursuant to Section 445 of the Criminal Code. This alternate offence is damaging property and is established when a person is proven to have unlawfully destroyed or damaged the property of another person without that person’s consent.

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

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