The term ‘Criminal Damage’ encompasses an array of property damage related offences. Under Victorian Law, these offences can have serious implications, including imprisonment. Foremost, in Victoria criminal damage and related offences are outlawed pursuant to Division 3 of the Crimes Act 1958. Most commonly, charges related to Criminal Damage include the destruction or damage to property and arson related offences. This article will outline the most common property damage offences and the legal implications that arise if charged.
Meaning of Property under the Act – s196
Under section 196 ‘Property’ is defined as being any property of a tangible nature. Further, the term ‘property belonging to another’ is defined as being any property that is in the custody or control of another person, or property another person has proprietary rights over, or any property that another person has a legal charge over.
Destroying or Damaging Property – s197
Intentionally destroying or damaging property is a very serious offence in Victoria, indicative of the maximum penalties. Pursuant to section 197(1) of the Crimes Act, a person who intentionally and without lawful excuse destroys or damages any property belonging to another or to himself and another is guilty of an indictable offence and liable to a maximum of 10 years imprisonment. Similarly, under s197(2) a person who intentionally destroys or damages property with the intention of such damage to endanger the life of another may be liable to a maximum of 15 years imprisonment. With respect to these sections, the prosecution must prove that the person intended to destroy or damage the property, or that they knew that their conduct is probable to result in the destruction or damage of the property. This means that the evidential burden is on the prosecution to prove intention.
Additionally, under s197(3), a person who dishonestly, with the view to gain for themselves (financially or otherwise), destroys or damages property may be liable to a maximum of 10 years imprisonment. This charge may be ancillary in fraud proceedings, where a person has deliberately damaged their property with the hope of obtaining insurance benefits.
Finally, pursuant s197(7), a person found guilty of arson is liable to 15 years maximum imprisonment.
Determining Outcomes for Criminal Damage
Whilst offences under section 197 are indictable offences, most property damage offences under s197(1) will be determined in the Magistrates’ Court. This is because the Magistrates’ Court has jurisdiction to hear and finalise property damage related offences where the value of the property is below $100,000. Thus, unless the damage exceeds this threshold, it will likely be heard in the Magistrates’ Court. However, charges under s197(2) (destruction or damage of property intending to endanger the life of another) can only be determined in the County Court.
Lawful Excuse – Partial Defence
A person charged with property damage offences may be able to argue that they had lawful excuse for damaging or destroying that property. Pursuant to section 201, lawful exclude may be argued where at the time of the alleged damage, the accused believed that a) the property belonged solely to him or herself; b) that he or she held a right or interest in the property that authorised him or herself to engage in the conduct or c) the people he or she believed were entitled to consent to the destruction or damage had consented or would have consented if they had know the circumstances of the destruction or damage. A person has a lawful excuse to a charge under section 197(1) if he or she engaged in conduct in order to protect property belonging to him or herself or another, or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of such conduct he or she believed that the property, right or interest was in immediate need of protection, or the means adopted or proposed to be adopted to protect the property, right or interest were or would be reasonable in all the circumstances (s. 201(2)(b)). Essentially, this section provides a defence where the property is owned by the person charged, and who in the circumstances, had a reasonable excuse to damage or destroy the property.
Other Defences for Criminal Damage
Other defences for property damage related offences may include self-defence, duress or mental impairment. Importantly, it should be noted that intoxication is not a defence in Victoria, so, cannot be relied on in criminal damage proceedings. For more information on possible defences for criminal damage charges, visit our ‘Criminal Damage’ page, here: https://galballyparker.com.au/criminal-damage/
Sentencing Outcomes for Criminal Damage Offences
The range of sentences available and ordered for property damage offences varies greatly and are usually dependent on the value of the property that was damaged or destroyed. This is reflected by data published by the Sentencing Advisory Council. They found that between 30 June 2016 – 1 July 2019 the following sentences were imposed for property damage offences:
- Imprisonment – 30.4%
- Community Correction Order – 24%
- Fine – 21.4%
- Adjourned undertaking/discharge/dismissal – 23.3%
How Galbally Parker Can Help
Ultimately, property damage offences can have serious legal implications, including jail time. If you have been charged with a criminal damage related offence, speak to an experienced criminal defence lawyer, such as those at Galbally Parker, to ensure that you can properly defend the claim against you or ensure that you get the best sentence possible.
