What is Criminal Damage in Victoria?
The charge of Criminal damage is made out at law when one person intentionally or recklessly damages or destroys another persons property in circumstances where no lawful excuse exists.
Elements of Criminal Damage
Section 197 of the Crimes Act 1958 prescribes that criminal damage (or property damage) is an offence in the State of Victoria.
The prosecution must prove:
That the defendant damaged or destroyed property;
That the accused purposely damaged or destroyed the property, or knew or believed that damage or destruction was the likely result of his/her actions;
That the accused purposely endangered the life of another person by causing the damage, or knew or believed that the life of another person was likely to be endangered by the damage or destruction (If charged under section 197 (2));
That the accused had no lawful excuse for damaging or destroying the property.
The maximum penalty
For Section 197(1) or (3) – Level 5 being 10 years imprisonment.
For Section 197(2) – Level 4 being 15 years imprisonment.
Where will my case be heard?
A charge of Criminal Damage will typically be heard in the Magistrates’ Court, unless the value of property damage exceeds $100,000 in which case the charge may be heard in the County Court.
Defence to Criminal Damage
- Can the prosecution prove all elements of the charge?
- Do you have a legal claim to the property entitling you to destroy it?
- Did you believe yourself to be the sole owner of the property?
- Did you unintentionally destroy the property?
- Is a diversion available in relation to your matter to avoid a criminal record?
What to do next if charged with criminal damage?
Criminal Damage is a serious charge. You should make an appointment with an expert criminal lawyer as soon as possible to ensure proper representation and the best possible defence is provided for you.
The legislation
Section 197 Destroying or damaging property
(1) 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 and liable to level 5 imprisonment (10 years maximum).
(2) A person who intentionally and without lawful excuse destroys or damages any property, intending by the destruction or damage to endanger the life of another, shall be guilty of an indictable offence and liable to level 4 imprisonment (15 years maximum).
(3) A person who dishonestly, with a view to gain for himself or another, destroys or damages any property shall be guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).
(4) For the purposes of subsections (1) and (2) a person who destroys or damages property shall be taken as doing so intentionally if, but only if—
(a) his purpose or one of his purposes is to destroy or damage property; or
(b) he knows or believes that his conduct is more likely than not to result in destruction of or damage to property.
(5) For the purposes of subsection (2), a person who destroys or damages property shall be treated as intending thereby to endanger the life of another if, but only if—
(a) his purpose or one of his purposes is to endanger the life of another by the destruction or damage; or
(b) he knows or believes that the life of another is more likely than not to be endangered by the destruction or damage.
(6) An offence against this section committed by destroying or damaging property by fire shall be charged as arson.
(7) A person guilty of arson is liable to level 4 imprisonment (15 years maximum) despite anything to the contrary in this section
