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In NSW, the specific charge of 'malicious damage' has been superseded. The offence has been recast as "purposefully or carelessly causing damage or destruction to another's property". This change is now governed by section 195 of the Crimes Act 1900. Graffiti and vandalism-related events are currently managed under the distinct Graffiti Control Act 2008.
In New South Wales, intentionally harming property, previously known as malicious damage, can carry a top sentence of five years in jail. If this crime is carried out with others, the maximum potential sentence goes up to six years. Higher maximum penalties are applicable if the act is done using explosives or fire or occurs during 'public disturbances'.
The crime of Malicious Damage falls under section 195 of the Crimes Act 1900, which articulates:
(1) An individual who deliberately or recklessly causes destruction or harm to property owned by another person, or jointly owned by that individual and another, is subject to:
(a) a potential imprisonment term of 5 years, or
(b) if the harm or destruction involves fire or explosives, a potential imprisonment term of 10 years.
(1A) An individual who, in collaboration with one or more individuals, intentionally or recklessly causes destruction or harm to property owned by another person, or jointly owned by that individual and another, is subject to:
(a) a potential imprisonment term of 6 years, or
(b) if the harm or destruction involves fire or explosives, a potential imprisonment term of 11 years.
(2) An individual who, in collaboration with one or more individuals, intentionally or recklessly causes destruction or harm to property owned by another person, or jointly owned by that individual and another, is subject to:
(a) a potential imprisonment term of 7 years, or
(b) if the harm or destruction involves fire or explosives, a potential imprisonment term of 12 years.
You might be held responsible for this offence if you:
1. Intentionally mar, modify, or deface someone’s property aiming to harm.
2. Purposefully erase data from a computer, causing another’s property loss.
Cases involving property valued over $5000 come under the Table 1 offence category. This means both the DPP and the defendant can decide if the case should be heard in the District Court. Otherwise, it defaults to the Local Court.
For property valued at $5000 or below, it’s categorised as a Table 2 offence. This means only the DPP can decide on District Court proceedings, at whether the case should be heard. If no election is made, it is managed in the Local Court.
The prosecution needs to prove: three key elements prior to determining your guilt in the intentional or reckless destruction or damage of property:
1. That you have indeed caused damage to or brought about the destruction of a property.
The concept of ‘damage’ refers to the tangible deterioration of an asset. It should be highlighted that such damage does not necessarily have to be long-lasting or irreversible. Actions such as deflating the tires of a vehicle, placing obstructions around an asset, or deleting digital data are all considered forms of damage. Moreover, it also includes more persistent methods of harm, such as shattering an item or committing acts of graffiti on property.
2. That the property was the possession of a specific person.
It must be validated that the property affected was owned by an individual other than you. However, it’s worth noting that one can still be prosecuted for damaging or destroying a property even if they share ownership of it.
3. That you had the determination to bring about the said damage or destruction, or that you acted with a disregard for the foreseeable consequences of damage or destruction.
It needs to be evidenced that you either consciously intended to inflict the damage or that you took action without consideration, overlooking the potential harm or destruction that might ensue.
This implies that you should have been able to foresee that your actions would lead to the resulting damage or destruction.
In certain situations, you might be able to avoid penalties by presenting evidence indicating that your actions were inadvertent or accidental. For instance, this could apply when you unintentionally step on someone’s phone or accidentally delete files from a computer.
Before a determination of your guilt in causing destruction or damage to property, it is incumbent upon the prosecution to substantiate the following points:
1. That you were involved in damaging or destroying property.
2. That the property belonged to someone other than yourself.
3. That you possessed the intention to effect the damage or destruction, or you acted recklessly, without concern for the potential damage or destruction.
Should you find reason to believe that any of these aspects cannot be sufficiently proven, you have the option to enter a plea of ‘not guilty.’ In such cases, our highly skilled legal team can represent you in court and provide a robust defence.
Our adept criminal law specialists frequently handle such cases and are often successful in getting charges dismissed at an early stage by highlighting issues with the evidence presented by the prosecution. This could include instances where there is insufficient evidence to establish your responsibility for the property damage.
Should the prosecution persist with the charges, we will vigorously pursue a ‘not guilty’ verdict by presenting potential defences to the charges, such as:
1. Demonstrating that you were coerced or subjected to threats that compelled you to cause the damage (duress).
2. Showing that you damaged the property while protecting yourself, another individual, or your own property (self-defence).
3. Establishing that the damage or destruction was essential to prevent serious harm or danger (necessity).
If contesting the charges isn’t your intention, you have the option to plead guilty.
By choosing to plead guilty during the early stages of the legal process, you could potentially receive a more lenient sentence. This is because the court takes your acknowledgment of responsibility into consideration.
Before entering a guilty plea for any offence, it’s crucial to consult a proficient criminal lawyer. They can determine if you have grounds to defend against the charges, potentially leading to the avoidance of a conviction altogether.
Should you consider pleading guilty, it’s vital to be informed about the maximum penalties for the specific offence.
These maximum penalties are primarily contingent upon the circumstances surrounding the offence:
However, these penalties represent the maximum limits and are applicable in the most severe cases.
Our experienced advocates are dedicated to helping you get the most lenient outcome. In numerous instances, we secure ‘section 10 conditional release orders’ for clients following a guilty plea. This outcome entails being found guilty of the offence while not recording a conviction on your criminal record.
Such an outcome proves highly advantageous if concerns arise about the impact of a criminal record on employment and travel prospects.
The court possesses the authority to impose an array of penalties, including:
Engaging our experienced criminal defence lawyers boosts your likelihood of securing a favorable result. They meticulously scrutinise all evidence to mitigate the severity of your sentence.
Moreover, our experts strive for the case to be addressed in the Local Court, where the maximum penalty for this offence is 2 years of imprisonment and/or a fine.
A charge related to malicious damage to property can be effectively addressed by relying on any of these available defences:
Lack of Intent: Demonstrating that your actions did not have the purpose of causing harm or destruction to the property.
Property Ownership: Asserting that you were the exclusive owner of the property in question.
Duress: Contending that you committed the offence due to coercion or threats.
It’s essential to understand that a conviction for malicious damage to property necessitates the presence of intent. Therefore, if the property damage occurred accidentally, you cannot be held accountable for this offence.
For legal guidance or representation in any legal matter, feel free to contact KPT Defence Lawyers today.
Earlier this month, our criminal defence lawyer, Ellyse Kwan, represented a client in court facing charges of assault
Recently, our Partner and Accredited Specialist, Paul Blake, appeared at Burwood Local Court for a bail application for
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