What is malicious damage to property?

Malicious damage of property offences are some of the most commonly reported crimes in New South Wales. Considered the intentional destruction or defacement of public or private property, the main offence is a crime under section 195(a) of the Crimes Act 1900 (NSW). This offence occurs when a person:

  • Damages or destroys,
  • Property belonging to another or to that person, and
  • The damage was caused intentionally or recklessly.

 

Defining “property”

In relation to this crime, property is defined broadly to include all real and personal property, excluding intangible property. For example, property capable of being damaged may include a car, computer, a park bench, or a pet, but not stocks, securities, or debts.

 

Defining “destroys or damages”

To cause damage means to injure or harm the property in some way that, commonly, lessens its value. A person does not damage property unless they alter its physical integrity. This definition includes temporary damage or making something temporarily unusable, such as breaking a window or deflating a tyre.

 

Malicious damage penalties

The maximum penalty for an offence under section 195(a) is five years imprisonment. However, most offenders do not receive a prison sentence. Penalties typically include a fine, conditional release order, or community correction order. It is also possible for no conviction to be recorded. You can learn about the different types of penalties here.

In determining the severity of the sentence, the court will consider:

  • The financial cost of the damage.
  • The extent of the damage caused.
  • The potential risk of injury to other people.
  • The offender’s motive.
  • The degree of planning and premeditation.

Some of the maximum penalties for other types of malicious damage offences are set out below:

OffenceMaximum prison sentence
Destroying or damaging property 5 years
Destroying or damaging property in company6 years
Destroying or damaging property during public disorder7 years
Destroying or damaging property with intent to injure a person7 years
Dishonestly destroying or damaging property7 years
Destroying or damaging property dishonestly, during a public disorder 9 years
Destroying or damaging property, with the intention to endanger the life of another25 years

 

Frequently Asked Questions

What are some examples of malicious damage?

The most obvious examples of malicious damage include where permanent damage has been caused to a physical object, such as smashing somebody’s antique vase on the ground. However, malicious damage also includes temporary damage such as through graffiti.

What if I accidentally damaged the property?

An offence under section 195(a) requires that the property be damaged intentionally or recklessly. If you purposely tried to damage personal property, or you realised an action might cause damage to the property and acted anyway, then you could be found guilty of offence. A genuine accident cannot be prosecuted under section 195(a).

What are the possible defences?

It could be argued that the damage was accidental. The precise circumstances of an incident may make it difficult to distinguish between intentional, reckless, and accidental actions. Someone witnessing an incident might believe the other person deliberately damaged the property, however the accused might not agree.

Other defences include duress, necessity, arguing that the property was not actually damaged or destroyed, or that it was your property and therefore you were permitted to damage it.

Where will the matter be heard?

Most malicious damage offences are indictable offences that can be dealt with summarily in the Local Court on the election of the prosecutor.

How can we help?

We are experienced in successfully defending malicious damage and related charges.

Book a free consultation or call us on 1300 668 484 for 24/7 legal advice.