Destroying or damaging property that belongs to another person is an offence against section 195(1) of the Crimes Act 1900.
Elements of the offenceIn order to prove this offence the prosecution must establish the following elements beyond a reasonable doubt:
- That the accused intentionally or recklessly;
- Destroyed or damaged property;
- Belonging to another person, or to the accused and another person.
‘Property’ is defined in section 4 of the Crimes Act 1900 and 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.
Behaviour that may constitute the offence
Examples of behaviour that may constitute this offence includes:
- deliberately defacing, altering or marking another person’s property;
- deliberately deleting items from a computer hard-drive that belong to another person.
Penalties
The Act prescribes different penalties depending on the circumstances in which the property is damaged or destroyed, including:
- If the destruction or damage is caused by the accused, the maximum penalty is 5 years imprisonment;
- If the destruction or damage is caused by fire or explosives used by the accused, the maximum penalty is 10 years imprisonment;
- If the property is damaged or destroyed in the company of another person, the maximum penalty is 6 years imprisonment;
- If the property is damaged or destroyed in the company of another person and is caused by fire and explosives, the maximum penalty is 11 years imprisonment;
- If the destruction or damage is caused by fire or explosives during a public disorder, the maximum penalty is 12 years imprisonment.
If the value of the property exceeds $5,000 then the offence is considered a ‘Table 1’ offence which means that either the Director of Public Prosecutions or the accused person can elect to have the offence prosecuted in the District Court where the penalties are higher.
If the value of the property does not exceed $5,000 then the offence is considered a ‘Table 2’ offence which means only the Director of Public Prosecutions can elect to have the offence prosecuted in the District Court.
If no election is made the offence will remain in the Local Court.
In the Local Court:
- if the value of the property is less than $5,000, the maximum penalty is 12 months imprisonment and/or a fine of $5,500;
- if the value of the property is exceeds $5,000, the maximum penalty is 2 years imprisonment and/or a fine of $11,000.
Defences
Possible defences that can be raised against this charge include:
- Arguing the accused acted in self-defence of their person, their property or another person
- Arguing that the property belonged solely to the accused
- Arguing that the accused did not intend any damage to be caused or did not foresee the possibility that any damage would be caused or that the damage was accidental
- Arguing the defence of necessity and establishing that the accused was compelled by a threat of danger to commit the offence
- Arguing the defence of duress and establishing the accused was under pressure or undue persuasion by another person to commit the offence