Malicious Damage, also known as Destroying or Damaging Property or threatening to destroy or damage property, refers to the intentional or reckless destruction or damage to property belonging to another person or entity. This offence can encompass a wide range of actions, from minor incidents like scratching a car to severe cases involving the use of explosives.
Legal Definition Under Section 195 of the Crimes Act 1900
According to Section 195 of the Crimes Act 1900:
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Intentional or Reckless Damage:
- This involves intentionally or recklessly destroying or damaging property that belongs wholly or partly to someone else. This means that you can partially or jointly own the property i.e. husband and wife but still be charged with this offence.
- Penalties:
- Up to 5 years imprisonment.
- Up to 10 years imprisonment if the destruction or damage is caused by means of fire or explosives.
- Penalties:
- This involves intentionally or recklessly destroying or damaging property that belongs wholly or partly to someone else. This means that you can partially or jointly own the property i.e. husband and wife but still be charged with this offence.
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Damage in Company:
- This involves intentional or reckless destruction or damage to property while in the company of another person or persons.
- Penalties:
- Up to 6 years imprisonment.
- Up to 11 years imprisonment if fire or explosives are used.
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Damage During Public Disorder:
- This involves intentional or reckless destruction or damage to property occurring during a public disorder.
- Penalties:
- Up to 7 years imprisonment.
- Up to 12 years imprisonment if fire or explosives are used.
Penalties for Malicious Damage
- Destroying or Damaging Property: Up to 5 years imprisonment.
- Destroying or Damaging Property by fire/explosives: Up to 10 years imprisonment.
- Destroying or Damaging Property in company: Up to 6 years imprisonment.
- Destroying or Damaging Property by fire/explosives in company: Up to 11 years imprisonment.
- Threatening to Destroy or Damage Property: Up to 5 years imprisonment.
Possible Defences
There are several defences available to those charged with Malicious Damage, including:
- Duress: If the accused was coerced or under threat, leading them to commit the offence.
- Necessity: The act was necessary to prevent a more significant harm.
- Lack of Intent: The damage was not caused intentionally or recklessly.
- Consent: The property owner consented to the damage.
- Full Ownership: The accused has full ownership of the property in question.
- No Actual Damage: The property did not sustain any damage.
Can I be charged with destroying or damaging my own property?
In short, no, you typically cannot be charged with destroying or damaging your own property, assuming no other person or entity has a legal interest in it. However, it is important to be aware that you may still be liable for other offences in certain circumstances. For example, if you damage your property to intimidate another person, as part of a pattern of behaviour, or as part of a threat, you could face criminal charges.
Threatening to Damage Property
Threatening to destroy or damage property is also a serious offence and can result in criminal charges. It involves making threats, with the intention of causing fear or apprehension that the threat will be carried out. Here’s what you need to know:
Legal Definition
Threatening to destroy or damage property involves communicating a threat to another person, where the intent is to:
- Cause fear that the threat will be carried out.
- Influence the behaviour of the other person through intimidation.
Key Legal Points
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Intent to Cause Fear: The prosecution must prove that the threat was intended to cause the person to fear that the threat would be carried out. This intent is central to the offence.
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Communication of Threat: The threat does not have to be verbal. It can be communicated through actions, gestures, or written messages. Sending a threatening letter or even implying a threat through behaviour can constitute this offence.
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Foreseeable Impact: Even if you did not intend to carry out the threat, if it can be shown that a reasonable person would foresee that the threat would cause fear, it supports the charge.
Penalties
- Imprisonment: The offence can carry penalties, including imprisonment of up to 5 years, depending on the circumstances and severity of the threat.
Defences
Several defences may be available if you are charged with threatening to destroy or damage property:
- No Intent to Cause Fear: Proving that there was no intention to cause the person to fear that the threat would be carried out.
- Lack of Communication: Demonstrating that the threat was never communicated to the person.
- Misunderstanding: Circumstances where the threat was not meant to be taken seriously, and it can be demonstrated it was a misunderstanding or a joke with no intention of causing fear.
Definition of Property
The Crimes Act 1900 provides a broad definition of property, which includes:
- Any real and personal property.
- Money, valuable securities, debts, legacies.
- Deeds, instruments related to title, right, or recovery of money or goods.
- Converted or exchanged property, including everything acquired through such processes.
Domestic Relationships Context
In the context of a domestic relationship, damaging property is addressed similarly to any other circumstance. However, offences within domestic relationships may be marked as “DV related” to indicate their domestic context. This notation does not alter the required proof or penalties but may be considered more serious by the courts due to the nature of the relationship.
Apprehended Domestic/Personal Violence Orders (AVO)
Charges of Malicious Damage often come with an Apprehended Domestic/Personal Violence Order (AVO). Governed by the Crimes (Domestic and Personal) Violence Act 2007, an AVO is a legally binding order that restricts a person’s actions and conduct towards others. An AVO can be issued if there is a fear of violence, harassment, intimidation, or stalking.
If a person is found guilty of a domestic violence offence, the AVO typically becomes a final order for a standard period of two years, unless exceptional circumstances warrant a different duration.
Seeking Legal Advice
Given the seriousness of Malicious Damage charges and the complexity of potential defences, it is essential to seek expert legal advice promptly. Catron Simmons Lawyers are available to assist you, ensuring that your defence is thorough and your interests are effectively represented.
Contact us today to discuss your case and explore your legal options.