It is an offence in Victoria to destroy or damage property belonging to another person. Wilful Damage is a Summary Offence, whilst Criminal Damage is indictable, therefore being a more serious offence. It is quite common to be charged with both offences, with only one proceeding following the resolution of a matter.
Criminal Damage is contained within Section 197 of the Crimes Act 1958, which states:
“A person who intentionally and without lawful excuse destroys or damages any property belonging to another or to himself and another shall be guilty of an indictable offence shall be guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum)”
“A person who destroys or damages property, shall be taken as doing so intentionally if, but only if-
- His purpose or one of his purposes is to destroy or damage property; or
- He knows or believes that his conduct is more likely than not to result in destruction of or damage to property”
Wilful Damage is contained within Section 9 of the Summary Offences Act 1966, which states:
“Any person who wilfully damages any property (whether private or public) the injury done being under the value of $5,000 shall be guilty of an offence”
Penalty: 25 penalty units or imprisonment for 6 months.
The legislation for Wilful Damage also contains other examples of Wilful Damage, including damage to public waterways. For the purposes of this article, we will be specifically looking at damage or destruction of property.
The elements of Criminal/Wilful Damage
In order for an individual to be found guilty of Criminal or Wilful Damage in Victoria, the following elements of the offence must be proven by the Prosecution, beyond reasonable doubt:
- The offender damaged or destroyed property;
- The property belonged to another person;
- The offender purposely damaged or destroyed the property, or knew or believed that damage or destruction was the likely result of their actions; and
- The offender had no lawful excuse for damaging or destroying the property.
Of course, for Wilful Damage, the value of the damage must be below $5,000.
Actions which may lead to a Criminal/Wilful Damage charge
Any action of purposely damaging or destroying property will be classified as Criminal/Wilful Damage. Actions which recklessly cause damage may also be classified as Criminal or Wilful Damage too. For example throwing an object at a wall in frustration which then creates a hole in the wall will be Criminal/Wilful damage, despite the person not intending on damaging the wall. If the offender ought to have known that the action may result in damage, it will satisfy the elements of the offence.
Damage to property jointly owned will also satisfy the elements of the offence. It is quite common for one party to damage an item in a family home, for example a piece of furniture, and be charged with Criminal/Wilful Damage, as it is property of the offender and perhaps their partner or children.
Some common actions which lead to Criminal/Wilful Damage charges include:
- Damaging a wall in a home;
- Causing damage to another’s vehicle in a road rage incident (e.g., getting out of the car and smashing a window);
- Breaking the lock of a door to gain entry into a premises.
Defences to Criminal/Wilful Damage
There are a number of defences available for a Criminal or Wilful Damage charge. These include:
- Factual dispute about who was the owner of the property (for example the property was exclusively the offender’s and no one else’s);
- The property damage was not caused by the offender;
- Self-defence or the protection of another;
- Honest and reasonable mistake; and
- Emergency situation which required the destruction or damage of property.
We recommend that you contact Nardi Lawyers if you have been charged with Criminal or Wilful Damage to discuss the circumstances of the offending and whether or not any defence applies.
The most common sentences for individuals who pleaded guilty to Criminal Damage between 1 July 2018 to 30 June 2021 are:
- Imprisonment – 37.7%
- Adjourned Undertaking – 23.4%
- Community Correction Order – 19.5%
- Fine – 18.6%
- Other – 0.8%
The most common sentences for individuals who pleaded guilty to Wilful Damage between 1 July 2018 to 30 June 2021 are:
- Adjourned Undertaking – 29.6%
- Fine – 26.8%
- Imprisonment – 26.5%
- Community Correction Order – 16.8%
- Other – 0.3%
See our article on Sentences for further information