Updated: Apr 6
A previous article discussed the indictable offence of Criminal Damage. The offence of Wilful Damage is often charged by police as an alternative to Criminal Damage. Here, we discuss the elements, defences, penalties and sentencing outcome for this summary offence.
Elements to Wilful Damage
The offence of Wilful damage is prosecuted under section 9 of the Summary Offences Act 1966 (Vic). A few offences arise under section 9, the first two (section 9(1)(a) & (1)(b)) are a bit unusual and create an offence for any person who:
destroys, damages, pollutes any aqueduct dam sluice pipe pump waterway pond pool or fountain; and perhaps a little more unusual:
being an artificer workman journeyman or apprentice wilfully damages spoils or destroys any goods, wares, or material committed to his care or charge.
The author is yet to see a prosecution under either section 9(1)(a) or 9(1)(b).
The offence under section 9(1)(c) is far more prevalent and provides that it is an offence for any person to:
wilfully injure or damage property (whether private or public) the injury being done under the value of $5,000.
Although not expressly stated under section 9(1)(c), the prosecution must also prove that the offence was committed without lawful excuse.
Key terms defined
'wilfully injure or damage property
In Bergin v. Brown  VR 888, the Court observed the term 'wilfully' requires the prosecution to "show either direct intention to cause damage or recklessness on the part of the accused as to the consequence of his acts".
Whether the property the subject of the allegation, is injured or damaged will always be a matter of degree in a particular case and of course a fact to be proven by the prosecution.
The value of the property injured or damaged must be under $5000 in value. In practice however the prosecution will often proceed with a charge of criminal damage regardless of whether the value of the property falls under this threshold.
What Is The Penalty For Wilful Damage in Victoria?
Section 9(1)(c) provides a maximum penalty of 25 penalty units or 6 months imprisonment.
Defences for Willful Damage
The defences that may be available for this offence will vary from case to case, and it is always important to consult an experienced criminal defence lawyer for a proper appraisal. Some of the common defences may include:
failure to establish that any damage was done by the accused intentionally or recklessly;
factual dispute as to the identity of the offender
factual dispute as to whether the property was in fact damaged
statute barred (summary offences must be filed with the Court within 12 months of the offence date)
Wilful damage is a summary offence and for this reason, the Magistrates' Court is the relevant jurisdiction. In assessing the gravity of an allegation of Wilful damage the obvious feature is the value of the property in question. Wilful damage is a very prevalent offence and the sentencing outcomes vary greatly from case to case. Diversion is an outcome that is often available depending upon the circumstances of the offence.
As a historic guide, the Sentencing Advisory Council has published the sentencing outcomes imposed for this offence for the period 1 July 2016 - 30 June 2019:
Imprisonment - 21.1%
Fine - 29.2%
Call our office if you are facing an allegation of Wilful Damage and have to attend Court
If you are facing an allegation of Wilful 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.