Destroy or Damage Property

Destroy or damage property offences are dealt with under section 195 of the Crimes Act 1900 (NSW). The law states that any person who intentionally, or recklessly destroys or damages property belonging to another or to that person and another is guilty of an offence.

What the prosecution need to prove 

The prosecution are required to prove, beyond reasonable doubt, that: 

  • You destroyed or damaged property,

  • You did this intending to cause the destruction or damage, or were reckless as to whether your actions would cause the destruction or damage, and 

  • The property belonged to another person. 

Whether property is ‘damaged’ will depend upon whether the person’s actions caused some form of alteration to its physical integrity, even where the alteration is temporary.

It is not an offence to damage your own property, however, it is still an offence to destroy or damage shared property, in that it belongs to you and another (i.e., as ‘co-owners’).

Common examples of this offence include breaking a window or door, deflating a tyre, smashing someone’s phone, among many other different things. Property is defined broadly as all ‘real and personal property’.

Penalties

The maximum penalty applicable will depend upon the circumstances of the offence, and how much the property involved is worth.

If the value of the property exceeds $5,000, the offence is classified as a ‘table 1’ offence. This means that it will be dealt with summarily in the Local Court unless the prosecution or defence elect for the matter to be dealt with in the District Court.

If the value of the property does not exceed $5,000, the offence is classified as a ‘table 2 offence’. This means that it will be dealt with summarily in the Local Court unless the prosecution elect for the matter to be dealt with in the District Court.

In practice, this means that the offence will be ordinarily dealt with in the Local Court, where the maximum penalty is limited to 2 years imprisonment, and a fine.

If the property is worth under $2,000, the maximum fine applicable is $2,200. If it is between $2,000 - $5,000, the maximum fine rises to $5,500. However, where it exceeds $5,000, the maximum fine is $11,000.

If the matter is elected and dealt with in the District Court, the maximum penalty applicable is 5 years imprisonment.

Other circumstances which alter the offence and relevant penalty include:

  • If you used fire or explosives = maximum penalty of 10 years imprisonment,

  • You were in the company of another person or persons = maximum penalty of 6 years imprisonment,

  • If you used fire or explosives whilst in the company of another person or persons = maximum penalty of 11 years imprisonment,

  • You did so during a ‘public disorder’ (i.e., riot) = maximum penalty of 7 years imprisonment,

  • You did so during a ‘public disorder’ whilst in the company of another person or persons = maximum penalty of 12 years imprisonment,

Apart from a full-time custodial sentence, you may also be eligible for the following penalties based on the circumstances:

  • S10(1)(A) dismissal.

  • Conditional release order without conviction.

  • Conditional release order with conviction.

  • Fine.

  • Community corrections order.

  • Intensive corrections order.

When determining a sentence, the court will consider a range of factors in relation to the offence including (i) how the damage was caused, (ii) the extent of the damage caused, (iii) the value or sentimental nature of the property, (iv) the degree of planning and premeditation, as well as (iv) whether the defendant has taken any measures to pay for or fix the damage caused.

Defences

  • You had no intention to destroy or damage the property,

  • You did not destroy or damage the property recklessly (this means that you did not realise that your actions could have resulted in destroying or damaging the property),

  • Self-defence,

  • False allegation,

  • Mistaken identity

  • Durres or necessity

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