Criminal Damage in Victoria, Australia.

Read on for an overview of Criminal Damage. Our discussion covers the elements, defences and penalties of this indictable offence in Victoria.


The offence of Criminal Damage is prosecuted under the Crimes Act 1958 (Vic) and is most often heard in the Magistrates' Court where the value of the property is less than $100,000.


Elements


Criminal Damage - Section 197 of the Crimes Act 1958 (Vic)


The prosecution must prove the following elements:


- A person intentionally

- destroys or damages any property.

- belonging to another or jointly owned.

- without lawful excuse


Criminal Damage - Section 197(2) of the Crimes Act 1958 (Vic)


Where the intent is to not only damage property but to also endanger the life of another, the offence attracts a more severe penalty (15 years).


Criminal Damage - Section 197(3) of the Crimes Act 1958 (Vic)

Where the intent to destroy or damage property is to realise a gain, an increased penalty of 10 years applies.

Some key terms defined:


Often the issue that property has been damaged or destroyed will be self-evident, however the following concepts are defined under the Crimes Act, and by case law.

"Property": Under Section 196 of the Crimes Act 1958 (Vic) 'property' is defined as real or personal property of a tangible nature.

"Destroying or damaging property''.

To "damage" property has been interpreted as having a broad meaning and includes:


- permanent or temporary physical harm;

- permanent or temporary reduction of functionality, utility or value (R v Previsic [2008] VSCA 112; Samuels v. Stubbs [1972] 4 SASR 200, Griffiths v. Morgan [1972] TAS SR 279)


It was decided in R v Previsic [2008] VSCA 112, that a person may "damage" property by contaminating it or by rendering it imperfect or inoperative.

"Property belonging to another"


Under Section 196, a property belongs to another, where that person has:

- custody or control of it;

- proprietary right or interest in it (other than one arising from an equitable agreement to grant or transfer an interest); or

- a charge on it

"Intention to destroy or damage property".

Under section 197(4) the prosecution must prove that:


- one of the purposes of the accused was to destroy or damage property; or

- that the accused knows that his or her conduct is more likely than not to result in destruction of or damage to property (R v. Hayes [2008] QCA 371).


The prosecution must prove the requisite intent at the time the accused did the relevant act (Royall v. R (1991).

"Without lawful excuse'


A lawful excuse may be argued where at the time of the alleged criminal damage, the accused believed that:


- the property belonged solely to him or herself (Section 201(2)(a)(i)

- that he or she held a right or interest in the property that authorised him or her to engage in the conduct (Section 201(2)(a)(ii) or;

- the people he or she believed were entitled to consent to the destruction or damage had consented or would have consented if they had known the circumstances of the destruction or damage (s. 201(2)(a)(iii).


A person has a lawful excuse to a charge under s. 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;

- 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)).


In addition to these offences provided for under s. 201 of the Crimes Act 1958 (Vic), common law defence of self-defence may also apply. At common law a person should not be convicted of an offence if he or she believed, upon reasonable grounds, that it was necessary in self-defence to do what he or she did (Zecevic v. Director of Public Prosecutions (1987) 162 CLR 645).


At common law, consent is also a defence to an allegation of criminal damage. A person who owns property has the right to damage or destroy his or her solely owned property, or to authorise another person to do so (R. v Denton (1982) 74 CR App R 81.


Penalties


Section 197 creates three separate offences each with its own penalty:

Section 197(1) (basic offence) - 5 years imprisonment (maximum)

Section 197(3) (intent to gain by damaging or destroying property) - 10 years (maximum)

Section 197(2) (intent to endanger life of another) - 15 years imprisonment (maximum)

Defences


The availability of a defence will always turn upon the circumstances alleged. Consequently, it is important to always speak to a criminal defence lawyer and obtain legal advice as to whether any defence is available. As a general guide, the following defences may be available:


- Factual dispute pertaining to the identity of the accused;

- Factual dispute about who the property belonged to;

- Factual dispute as to whether property damaged or destroyed;

- Lawful excuse (see discussion above)

- Mental impairment

Sentencing outcomes


Where the value of the property destroyed or damaged is less than $100,000 offences prosecuted under either Section 197(1) or Section 197(3) can be heard and finalised in the Magistrates' Court of Victoria. Both are indictable offences.


The Magistrates' Court does not have jurisdiction to hear and finalise an offence prosecuted under Section 197(2) (destroy or damage property intending to endanger the life of another). This offence must be heard and finalised in the County Court.

The sentencing outcomes available for this offence will depend upon the gravity of the alleged offending. One factor that determines gravity is the value of the property damaged or destroyed. Another factor is the extent to which the offence was premeditated and planned. There are however many considerations (relevant to the accused, and the circumstances of the offending) that must be considered in determining an appropriate sentence for criminal damage.


As a general guide the Sentencing Advisory Council has published data for the period 30 June 2016 - 1 July 2019, as to the sentencing outcomes for criminal damage.


Magistrates' Court


Imprisonment - 30.4%

Community Correction Order - 24%

Fine - 21.4%

Adjourned undertaking/discharge/dismissal - 23.3%


Call our office if you are facing a charge of Criminal Damage


If you are facing a charge of Criminal damage it is important to get advice as early as possible. Call us on (03) 9668 7600 for a case assessment and we can discuss your situation and explore all options.














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488 Bourke Street
Melbourne, Vic 3000

Ph: (03) 9668 7600

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