Criminal law
Destroying or damaging property
Malicious damage covers everything from scratching a car to arson. What decides the outcome is usually not the act but two other things: the value of what was damaged, which fixes the court and the ceiling, and whether the property was yours alone.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Our background includes prosecution as well as defence. We appear in Local Courts across Sydney.
What the prosecution must prove
- That property was destroyed or damaged
- That the property belonged to another person, or to you and another person
- That you caused the destruction or damage
- That you did so intentionally, or recklessly
Damage is broader than breaking something. It does not require permanent or serious harm, and it does not require that anything be destroyed. Rendering property inoperative, or leaving it imperfect compared with its previous condition, is damage. Temporary harm counts, and so does harm that can be cleaned off, repaired or undone. Deflating a tyre, jamming a lock, or disabling equipment can all fall within it.
Recklessness means you actually realised that damage might result and went ahead anyway. It is not enough that a reasonable person would have foreseen it. That distinction does real work, particularly where something broke during an argument or a struggle.
The charges and their maximums
| Circumstances | Maximum penalty |
|---|---|
| Intentionally or recklessly destroying or damaging property | 5 years |
| By means of fire or explosives | 10 years |
| In the company of another person | 6 years, or 11 years by fire or explosives |
| During a public disorder | 7 years, or 12 years by fire or explosives |
| Where the property is a war memorial | 7 years |
| Threatening to destroy or damage property | 5 years |
| Destroying or damaging property with intent to endanger life | 25 years |
The last of those is a different order of offence and is dealt with in the District Court.
The part that decides most cases
Which court hears it, and what that means
Almost every malicious damage matter is finalised in the Local Court rather than the District Court, and where that happens the maximum a magistrate can impose is well below the maximums set out above.
The value of the property damaged also matters to how the matter is classified and to the penalty available. That is why the figure police put on the damage is worth attention: it is frequently an estimate rather than a valuation, and a repair quote, evidence of the item’s age and condition, or evidence that part of the alleged damage was pre-existing can change the complexion of the matter and sometimes the penalty range that applies to it.
Your own property, and property you share
You cannot destroy or damage property that is yours alone. If you are the sole owner, the offence is not made out, though proving sole ownership can be the whole argument, and receipts, bank records and registration documents do the work.
Property owned jointly is different. The offence covers property belonging to another person or to you and another person, so a spouse or de facto partner who damages the television, the car or the house you own together can be, and regularly is, charged. This is the single most common misunderstanding on this subject and it produces a great many charges arising out of arguments at home.
Damaging your own property can also still lead to charges of a different kind, where it was done to frighten or control someone, as part of a pattern of behaviour, or as a threat. More on stalking and intimidation.
Threatening to destroy or damage property
A separate offence, carrying up to five years. The prosecution must prove that you made the threat, and that you intended the other person to fear it would be carried out. It does not have to be spoken: a written message, a gesture or conduct that conveys the threat is enough.
The intention to cause fear is the element the offence turns on. It is not enough that a reasonable person might have been frightened, and it is not enough that the other person was in fact frightened. What matters is what you intended, which is why context, tone and the history between the parties carry weight in these cases.
There is no need to have any means or intention of actually carrying it out.
Defences and issues
The property was not damaged
Where the property was unaffected, or where what is complained of was already there. Evidence of the property’s condition beforehand does the work, and it is worth gathering early.
Accident
Neither intentional nor reckless. Something broken during a struggle, or knocked over, is not automatically this offence. Recklessness requires that you realised damage might result.
Sole ownership
The property was yours alone. Evidence of ownership is what decides it.
Consent
The owner consented to what was done, or you believed on reasonable grounds that they would have.
It was not you
Identification, particularly with graffiti, damage discovered later, or incidents involving several people.
Self-defence, duress and necessity
Damage caused defending yourself or another person, under threat, or to avert a greater harm, such as breaking a window to reach someone.
Where a mental health impairment or cognitive impairment is involved and the matter is in the Local Court, it may be able to be dealt with by way of a treatment plan rather than a conviction. That requires properly prepared evidence.
Damage in a domestic context
The elements and the maximum penalties are identical. What changes is what comes with the charge. The matter is recorded as domestic violence related, an AVO will usually accompany it, and a conviction carries that notation on your record.
Because so much household property is jointly owned, these charges arise readily from arguments at home, including where the item damaged was bought by the person charged. More on domestic violence offences and AVOs.
Restitution is worth thinking about in these matters. Repairing or paying for the damage before sentencing is relevant to how the court views the offence, and in lower-value matters it can make a real difference to the outcome.
Sentencing options in NSW
Get advice before pleading guilty to anything. The court can impose any of the following, and a well-prepared sentencing is what produces the best available outcome.
Dismissal without conviction
No conviction recorded and no further penalty. The matter is finalised as you leave court.
Conditional release order
A bond, available with or without a conviction, supervised or unsupervised. The standard conditions are to commit no further offence and to appear if called on, and further conditions can include rehabilitation, abstinence, curfews and non-association or place restriction orders.
Conviction with no other penalty
A conviction is recorded but nothing further is imposed.
Fine
Can be imposed alone or with a bond, and is a conviction. Usually payable within 28 days, though the registry can extend the time or arrange a plan. Non-payment leads to enforcement, which can include licence and registration suspension.
Community correction order
More serious than a conditional release order, for up to three years, supervised or unsupervised, with conditions that can include community service, curfews, abstinence and rehabilitation.
Intensive correction order
A sentence of imprisonment served in the community under strict supervision, which can include home detention, electronic monitoring and curfews. It is not available for some offences. Breaches go to the State Parole Authority rather than the court and often result in serving the balance in custody.
A word on written pleas of guilty. Police sometimes hand you a form allowing you to plead guilty in writing without attending. It looks convenient and it is usually a mistake. On a written plea the magistrate has only the police fact sheet and your record, and knows nothing about you, your circumstances or anything mitigating. The penalty is often heavier as a result. It is also important that you agree with what the fact sheet says before it is tendered, because the court sentences on that document.
Common questions
It was my own television. How can I be charged?
If you owned it outright, you cannot be. If it was bought during a relationship, or with joint money, or is otherwise jointly owned, the offence covers property belonging to you and another person. Who paid for it is evidence of ownership but is not the end of the question.
Nothing was broken. Can it still be damage?
Yes. Damage does not require anything to be broken or permanently harmed. Property left inoperative, or imperfect compared with how it was, is damaged, and that includes harm that can be repaired or cleaned off.
The damage was minor. Does that matter?
It matters a great deal, both to the penalty and to how the matter is classified. The figure police put on the damage is often an estimate rather than a valuation, so a repair quote, or evidence about the item’s age and condition, is worth obtaining early.
I did not mean to break it. Is that a defence?
It can be. The prosecution must prove you acted intentionally or recklessly, and recklessness means you actually realised damage might result. Genuine accidents are not this offence, though you may still be liable civilly for the cost of repair.
Will I get a criminal record?
Not necessarily. A non-conviction outcome is realistically available for lower-value damage where there is no significant record, particularly where restitution has been made. What decides it is how the sentencing is prepared.
Should I pay for the damage?
Restitution is relevant to sentencing and generally viewed favourably. In a domestic matter, where an AVO restricts contact, how and through whom payment is made needs care so that arranging it does not become a breach.
Is graffiti the same charge?
Not necessarily. Marking property is dealt with under separate graffiti legislation and carries a fine rather than the malicious damage maximums. Police sometimes charge malicious damage where the graffiti offence fits better, and that is worth raising.
Can the charge be negotiated?
Often. Negotiation about the value of the damage, about what the fact sheet says, and sometimes about the charge itself is a substantial part of this work, and on this offence the value is where the leverage usually is.
What should I bring to the first appointment?
The court attendance notice, the police fact sheet, any AVO or bail conditions, and anything going to the value or ownership of the property, including receipts, photographs, repair quotes and insurance documents. If you have none of it, come anyway.
The value is usually where the case is won
These matters frequently turn on the figure put on the damage and on whether the property was jointly owned, rather than on whether something was broken. Both are worth testing before a plea is entered.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153. Courts we appear in.