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Being charged with destroying or damaging property is a serious criminal allegation in New South Wales. The principal offence is contained in section 195 of the Crimes Act 1900 (NSW) and can carry significant terms of imprisonment depending upon the circumstances of the alleged offending.
A person may be charged where police allege that they intentionally or recklessly damaged or destroyed property belonging to another person. The allegation can arise in circumstances involving residential property, vehicles, businesses, public property, commercial premises, personal belongings, fences, windows, doors or other property.
The seriousness of the charge can increase considerably where:
At Chidiac & Associates, we provide strategic Criminal Defence representation to individuals facing destroy or damage property charges throughout Sydney and New South Wales.
We understand that a property damage allegation can have serious consequences for a person's liberty, criminal record, employment and reputation. We carefully examine the circumstances of the alleged damage, the evidence relied upon by the Prosecution and any available defence.
The principal offence is contained in section 195 of the Crimes Act 1900 (NSW).
Section 195 provides that a person who intentionally or recklessly destroys or damages property belonging to another person, or to that person and another person, commits an offence. The ordinary maximum penalty is:
Where the destruction or damage is caused by fire or explosives, the maximum penalty increases to:
Section 195 also contains more serious offences where the accused acts in the company of another person or persons, or where the conduct occurs during a public disorder.
At Chidiac & Associates, we carefully identify the precise subsection charged because the applicable maximum penalty can depend upon the circumstances in which the alleged property damage occurred.
Section 195 is headed:
The principal offence under section 195(1) applies where a person:
where the property belongs to another person or to the accused and another person.
The maximum penalty is:
Where the destruction or damage is caused by fire or explosives, the maximum penalty is:
The legislation therefore distinguishes ordinary intentional or reckless property damage from damage caused by particularly dangerous means.
The ordinary offence under section 195(1) involves intentional or reckless destruction or damage to property belonging to another person.
The maximum penalty is:
Where fire or explosives are involved:
Examples of conduct that may potentially result in a charge include allegations that a person:
The precise circumstances must be examined to determine whether the statutory elements have been established.
Section 195 contains a more serious offence where the accused is alleged to have acted in the company of another person or persons.
The maximum penalty is:
Where the destruction or damage is caused by fire or explosives, the maximum penalty is:
This provision can therefore have significant consequences where police allege that two or more people participated in the property damage.
The fact that other people were present does not necessarily resolve the question of whether the accused committed the offence.
The evidence concerning each person's conduct, participation and state of mind should be carefully examined.
A further increase in the maximum penalty applies where the offence occurs during a public disorder.
Section 195(2) provides a maximum penalty of:
Where the destruction or damage is caused by fire or explosives, the maximum penalty increases to:
Whether the circumstances amount to a public disorder can therefore become an important issue in a particular Prosecution.
Recent amendments to section 195 also created a specific offence concerning the destruction or damage of a war memorial.
Section 195(1AA) applies where a person intentionally or recklessly destroys or damages property belonging to another person, or to that person and another person, where the property is a war memorial.
The maximum penalty is:
This is a separate provision that should be considered where the alleged property damage involves a war memorial.
The maximum penalty depends upon the precise circumstances.
These are statutory maximum penalties. They do not mean that a person convicted of property damage will automatically receive imprisonment or the maximum sentence.
For a standard allegation under section 195(1), the Prosecution must establish the relevant elements of the offence beyond reasonable doubt.
This generally requires consideration of:
Where a more serious subsection is alleged, additional matters may need to be established, such as:
At Chidiac & Associates, we examine each element separately rather than simply accepting the allegations contained in the police facts.
The legislation governing criminal destruction and damage of property contains specific provisions concerning the meaning of property.
The concept principally concerns tangible property.
The legislation also contains provisions concerning certain wild creatures and their carcasses where they have been reduced into possession or are in the course of being reduced into possession.
The statutory provisions also specifically recognise certain forms of damage, including removing, obliterating, defacing or altering a unique identifier attached to property.
Accordingly, what constitutes "property" and whether the alleged conduct amounts to "damage" should be considered according to the particular facts.
Damage does not necessarily mean that property has been completely destroyed.
A person may be alleged to have damaged property where its condition, usefulness, appearance or integrity has been affected.
Examples may include:
The extent of the damage may become particularly important when considering the seriousness of the offence and sentencing.
Section 195 applies where the accused intentionally destroys or damages property.
An intentional act is different from an accidental event.
For example, if a person deliberately:
The Prosecution may allege that the damage was intentional.
However, the precise state of mind of the accused must be determined from the evidence.
At Chidiac & Associates, we examine what the accused actually intended at the time of the alleged conduct.
Section 195 also applies to property damage that is alleged to have been caused recklessly.
This means that a person can potentially be charged even where police do not allege that the person specifically intended the resulting damage.
The circumstances surrounding the conduct become particularly important.
The defence may need to examine:
The distinction between an intentional act and reckless conduct can therefore be significant.
Not every instance of property damage amounts to a criminal offence.
For example, property may be damaged accidentally during:
Whether accidental damage constitutes an offence depends upon the particular circumstances and the applicable statutory requirements.
Where the Prosecution cannot establish the required intention or recklessness, the charge may not be made out.
Section 195 expressly applies to property belonging to another person or to the accused and another person.
This means that a person may potentially commit the offence even where they have an ownership interest in the property.
For example, disputes concerning:
may raise complicated legal issues.
At Chidiac & Associates, we examine the ownership structure and the circumstances in which the alleged damage occurred.
A person does not necessarily avoid criminal responsibility simply because they have some ownership interest in the property.
The statutory wording specifically contemplates property belonging to the accused and another person.
Accordingly, the legal position can be different where property is:
Legal advice should be obtained where ownership is disputed.
A significant number of destroy or damage property allegations arise during arguments or disputes.
Examples may include allegations that a person:
The surrounding circumstances can be important.
The defence may need to investigate:
Property damage allegations can arise in the context of domestic or family violence proceedings.
A person may face both:
The criminal charge and any protection order are separate legal proceedings.
A person should obtain legal advice before contacting the alleged victim, particularly where an AVO or other order is in place.
At Chidiac & Associates, we can advise clients about the interaction between criminal charges and related domestic violence proceedings.
Damage to a motor vehicle is a common form of property damage allegation.
Police may allege that a person:
The Prosecution may rely upon:
The defence should carefully examine whether the evidence establishes that the accused caused the damage.
Allegations can also involve damage to:
Evidence may include photographs, repair invoices, CCTV, witness statements and forensic evidence.
Where fire or explosives are alleged, the matter can become substantially more serious and may involve additional or alternative offences.
Section 195 provides significantly higher maximum penalties where the destruction or damage is caused by fire or explosives.
Under the ordinary offence:
With fire or explosives:
Where the offence occurs in company with another person:
Where it occurs during a public disorder:
Fire-related offending can also result in other criminal charges depending upon the circumstances, particularly where people were placed at risk.
At Chidiac & Associates, we carefully consider whether the evidence supports the particular offence charged and whether additional charges are properly open to the Prosecution.
A substantially more serious offence is contained in section 196 of the Crimes Act 1900 (NSW).
Section 196 applies where a person destroys or damages property intending by the destruction or damage to cause bodily injury to another.
The maximum penalty is:
Where the destruction or damage is caused by fire or explosives:
If the conduct occurs during a public disorder, the maximum penalty increases to:
or, where fire or explosives are involved:
This offence should not be confused with the ordinary section 195 property damage offence because the Prosecution must establish the additional intention to cause bodily injury.
Don't wait to get advice. Chidiac & Associates provides confidential criminal defence representation across Sydney and New South Wales, whenever you need it most.
Section 197 of the Crimes Act 1900 creates another separate offence.
It applies where a person:
The maximum penalty is:
Where fire or explosives are involved:
During a public disorder, the maximum penalties increase to:
or:
The precise charge is therefore important because a property damage allegation involving a financial or other gain may potentially be prosecuted under a different statutory provision.
Section 198 of the Crimes Act 1900 creates an extremely serious offence.
It applies where a person destroys or damages property intending by the destruction or damage to endanger the life of another person.
The maximum penalty is:
This is substantially more serious than ordinary property damage.
Where the Prosecution alleges conduct of this nature, the person's intention and the circumstances in which the property was damaged will be critically important.
A separate offence is contained in section 199 of the Crimes Act 1900.
Section 199 concerns making a threat, without lawful excuse, with the intention of causing another person to fear that the threat will be carried out, including a threat:
The maximum penalty is:
Where the offence occurs during a public disorder, the maximum penalty is:
A threat to damage property should therefore not automatically be treated as equivalent to an actual property damage charge.
For a standard section 195 charge, the Prosecution must prove the relevant elements beyond reasonable doubt.
The defence should carefully examine:
The Prosecution must establish that the property was actually destroyed or damaged.
Evidence may include:
The Prosecution must establish the relevant ownership or interest in the property.
This can become important where:
The Prosecution must establish that the accused was responsible for the destruction or damage.
This may involve:
The Prosecution must establish the required state of mind.
The distinction between intentional and accidental damage can therefore be critical.
A property damage Prosecution should not simply be accepted because damage occurred.
Depending upon the circumstances, possible defence issues may include:
The appropriate defence depends upon the evidence and circumstances of the individual matter.
CCTV can be particularly important in property damage cases.
Footage may establish:
CCTV may be obtained from:
At Chidiac & Associates, we carefully review available footage against the allegations contained in the police evidence.
Witnesses may be central to a property damage Prosecution.
A witness may allege that they saw the accused:
The reliability of that evidence should be examined carefully.
Important issues can include:
The Prosecution may rely upon photographs showing the alleged damage.
Repair invoices or quotations may also be produced.
The defence may need to examine:
The amount of financial loss may also be relevant to sentencing.
Forensic evidence may sometimes be relied upon to connect a person with damaged property.
However, the presence of a person's fingerprint or DNA does not necessarily establish when or how it came to be there.
The circumstances in which the forensic evidence was obtained must therefore be considered.
At Chidiac & Associates, we examine forensic evidence and consider whether it genuinely establishes the Prosecution allegation.
Police may rely upon:
The police version of events should be carefully compared with the available objective evidence.
In some cases, the objective evidence may reveal inconsistencies that are important to the defence.
If a person pleads guilty or is found guilty, the Court will consider the circumstances of the offending and the offender.
Sentencing considerations can include:
The statutory maximum is not an automatic sentence.
Where property has been damaged, the question of compensation or restitution may become relevant.
Depending upon the circumstances, a person may consider:
However, any proposed payment should be considered carefully with a lawyer, particularly where criminal proceedings remain ongoing.
At Chidiac & Associates, we can advise clients about the potential sentencing relevance of restitution and compensation.
An apology letter may be appropriate in some sentencing matters.
A person may wish to express:
An apology should be genuine and consistent with the plea and factual circumstances.
It should not contain unnecessary admissions or contradict the person's legal position.
At Chidiac & Associates, we can advise clients about apology letters and other sentencing material where appropriate.
Character references may also be relevant in appropriate sentencing proceedings.
A character reference may address:
A referee should generally understand the nature of the offence before providing a reference.
An early guilty plea can be relevant to sentencing.
However, a person should obtain legal advice before entering a plea.
The appropriate decision depends upon:
At Chidiac & Associates, we advise clients about their options before a plea is entered.
The Court in which a destroy or damage property matter is dealt with depends upon the particular charge and the way in which the matter proceeds.
Less serious matters may be dealt with summarily in the Local Court, while more serious allegations may proceed in the District Court, particularly where the maximum penalty and circumstances of the alleged offending warrant proceedings on indictment.
The precise jurisdiction should therefore be considered after reviewing the charge.
At Chidiac & Associates, we represent clients throughout the NSW criminal Court system and advise them about the appropriate procedural pathway.
At Chidiac & Associates, we provide comprehensive Criminal Defence representation for people facing destroy or damage property charges throughout Sydney and New South Wales.
We can assist with:
Our approach is built on meticulous preparation, strategic advice and strong Courtroom advocacy.
A property damage charge can appear straightforward, but the legal issues can be more complicated than the allegation initially suggests.
Important questions may include:
At Chidiac & Associates, we examine the entire evidentiary picture before advising clients about the best way forward.
If you or someone you know has been charged with destroying or damaging property under the Crimes Act 1900 (NSW), obtaining experienced Criminal Defence advice as early as possible is important.
The ordinary offence under section 195(1) carries a maximum penalty of 5 years' imprisonment, increasing to 10 years where fire or explosives are involved. More serious circumstances can result in maximum penalties of 6, 7, 10, 11 or 12 years, depending upon the particular subsection and circumstances.
Separate offences can carry substantially higher penalties where the Prosecution alleges an intention to cause bodily injury or endanger life.
At Chidiac & Associates, we provide confidential Criminal Defence advice and representation for destroy or damage property charges throughout Sydney and New South Wales.
Do not assume that a property damage allegation will result in a conviction.
The Prosecution must establish the relevant offence in accordance with the legislation, and the evidence should be carefully examined before any decision is made about how to proceed.
Contact Chidiac & Associates today for confidential advice and experienced Criminal Defence representation.
Need representation or unsure what the next steps in your case are? Contact us today for a consultation.