Malicious Damage of Property (NSW)

In New South Wales, malicious damage of property carries a maximum penalty of five years imprisonment. Where the offence is committed in company with another person, the maximum penalty is six years imprisonment. There are different maximum penalties if the destruction or damage is caused by means of fire or explosives, or during a ‘public disorder’.

The Offence of Malicious Damage

The offence of Malicious Damage is contained in section 195 of the Crimes Act 1900 which states:

1. (1) A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable:
   1. (a) to imprisonment for 5 years, or
   2. (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 10 years.
2. (1A) A person who, in the company of another person or persons, intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable:
   1. (a) to imprisonment for 6 years, or
   2. (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 11 years.
3. (2) A person who, in the company of another person or persons, intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable:
   1. (a) to imprisonment for 7 years, or
   2. (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 12 years.

What is ‘Property’?

Property is defined in section 4 of the Crimes Act 1900. It includes:

• All real and personal property;
• Money, valuable securities, debts, and legacies;
• All deeds and instruments relating to, or evidencing the title or right to any property, or giving a right to recover or receive any money or goods.

What Actions Might Constitute “Malicious Damage”?

A person may be found guilty of this offence if they:

• intentionally damaged another person’s property by defacing, altering or marking it;
• intentionally destroyed another person’s property by deleting items from a computer hard-drive.

Jurisdiction

Where the value of the property charged exceeds $5000, this matter is a Table 1 offence which means that either the DPP or an accused can elect to have the matter dealt with in the District Court. If no election is made, the matter will be dealt with in the Local Court.

Where the value of the property charged does not exceed $5000, this matter is a Table 2 offence which means that only the DPP can elect to have the matter dealt with in the District Court. If no election is made, the matter will be dealt with in the Local Court.

If the matter is dealt with in the Local Court, the maximum penalty for this offence if you are convicted in the Local Court is:

Damage to property less than $5000

• A maximum term of imprisonment of 12 months;
• A maximum fine of $5,500

Damage to property over $5000

• A maximum term of imprisonment of 24 months;
• A maximum fine of $11,000

What must be proven?

To convict you of malicious damage to property, the police must prove each of the following matters beyond a reasonable doubt:

• You destroyed or damaged property;
• The property belonged to another person, or the accused and another person;
• The destruction or damage was done maliciously, with intent or recklessness.

They will also need to prove that you were the person who committed the malicious damage to property offence.

Can I Pay a Greater Fine to Avoid Being Convicted?

No, it is not possible to bargain with the court that you would pay a larger fine to avoid a criminal conviction. If the court deals with you under section 10 there will be no fine, but there may be court costs to pay (this is normally less than $80).

Defences

A charge of malicious damage to property can validly be defended by arguing:

• That you did not intend to damage or destroy the property;
• That the property was solely your property; or
• That the offence was committed under duress.

Note: You cannot be convicted of malicious damage to property if you do not show the required intent. This means that you will not be convicted of the offence if the property was damaged accidentally.

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