Intentionally or Recklessly Destroy Property (Malicious Damage) - next step legal guide

If you have been charged with a Damage or Destroy Property, or as it is commonly known the ‘Malicious Damage’ offence (s.195 Crimes Act 1900), then the prosecution must establish certain elements of the offence beyond reasonable doubt. These include:

1. That you destroyed or damaged property AND - 'damage' means physical harm and it need not be permanent or irreparable. 

2. That the property belonged to someone else, or you and another person AND - you cannot damage your own property, but if it is jointly owned by you and your partner, you are liable. You would be responsible if you damaged your home if it had a bank mortgage over it, as it is not solely owned by you. 

3. That you intentionally or recklessly destroyed or damaged the property in question – the prosecution must be able to show that you either knew that what you were doing would cause damage or destroy the property, or that you were aware that there was a possibility that your actions would result in some sort of damage or destruction of property.
 

Penalty

The maximum penalty for this offence will depend on the circumstances at the time the alleged offence took place:

  • If you were acting alone – 5 years’ imprisonment, or if the damage was caused by means of fire or explosives then 10 years’ imprisonment

  • If you were in the company of another person or persons – 6 years’ imprisonment, or if the damage was caused by means of fire or explosives then 11 years’ imprisonment

  • During a public disorder (e.g. a riot or brawl) – 7 years’ imprisonment, or if the damage was caused by means of fire or explosives then 12 years’ imprisonment

 

Defences

There are legal defences available to persons who have been charged with a malicious damage offence. Does your scenario fit into a legal defence? The following are possible defences:

  • Accident – it is a defence if the damage was caused by a genuine accident. The prosecution must show that you meant to damage the item OR that you foresaw that damage was possible from whatever actions you were doing when the damage occurred.

  • Necessity – you had to damage or destroy the property so as to prevent serious injury or danger. For example, smashing a window to rescue a child trapped in a car.

  • Duress – you were threatened or coerced into maliciously damaging or destroying the property.

 

Ideally you should speak to your solicitor before you speak to police – you need advice as to your rights and obligations so that you are more comfortable with the processes and understand what is happening. Only then can you make the best decisions.

 

YOUR NEXT STEPS WHEN YOU ARE CHARGED WITH MALICIOUS DAMAGE OFFENCE

1. Contact us. Early contact with Tankard’s Law is extremely important, so that you can start to take the right actions immediately. Obtaining advice in relation to making a statement to police or not. You need early advice.  

2. Gather material immediately. You should immediately type out your version of what occurred during the incident and provide this to your lawyer – details get lost in your memory over time. This step is crucial. Find the receipt of purchase if the property is yours. Take photos of the scene of the damage. You should find out who else might be a witness to what took place and get their details or enquire whether there is any CCTV footage.

3. Prepare. Your best chance in achieving the outcome that you want is to prepare your case properly. Let us help you.

If you have a question about the processes involved in arrest or charge, or attending court and what charges you face or need help understanding what the police are saying to you, contact us by phone on 02 6921 3220 or make a website enquiry.  We will get back to you promptly.

Principal Solicitor and Director, Zac Tankard, has been helping Riverina locals charged with criminal offences since 1998. There is no one better qualified to get behind you when you need it most.