What is Wilful Damage?

In Victoria, wilful damage is a criminal offence committed by a person who intentionally damages, destroys, pollutes, or obstructs property belonging to another without a lawful excuse, where the value of the damage is less than $5,000.

Wilful Damage is one of the more commonly reported criminal offences. Causes of wilful damage offences can include a range of factors, such as intentional acts, recklessness, and negligence.

Elements of Wilful Damage

Section 9 of the Summary Offences Act 1966 (Vic) contains the Victorian offence of wilful damage.

To be found guilty of the offence of wilful damage, the prosecution must prove that the accused:

• destroyed, damaged, polluted goods, materials or property (both public and private) without lawful excuse; or

• trespassed on a public or private place and refused to leave following instructions to do so by an authorized person or entered a place (whether public or private) in a way likely to cause a breach of the peace.

The maximum penalty for Wilful Damage

In Victoria, the maximum penalty for wilful damage is a fine of 25 penalty units or six months imprisonment.

A person found guilty of a wilful damage offence may also be required to pay compensation to a person who has suffered property damage pursuant to a compensation order.

Defences to Wilful Damage

The prosecution must prove that the person intended to cause the damage beyond a reasonable doubt. A person charged with wilful damage may validly argue certain defences, including the absence of intent, consent, extraordinary emergency, or duress. Defences may also include factual disputes about the identity of the offender, the property damaged, and the circumstances of the offence.

Where will charges be heard?

A charge of ‘Wilful Destruction, Damage etc.’ will be heard in the Magistrates’ Court.

What to do next?

If you are charged with wilful damage, you should contact one of our experienced criminal lawyers immediately to commence the preparation of your defence.

The legislation

Section 9 Wilful destruction, damage etc. of property

(1) Any person who—

(a) destroys damages pollutes or obstructs any aqueduct dam sluice pipe pump waterway pond pool or fountain;

(b) being an artificer workman journeyman or apprentice wilfully damages spoils or destroys any goods wares work or material committed to his care or charge;

(c) wilfully injures or damages any property (whether private or public) the injury done being under the value of $5000; or

(d) wilfully trespasses in any public place other than a Scheduled public place and neglects or refuses to leave that place after being warned to do so by the owner occupier or a person authorized by or on behalf of the owner or occupier; or

(e) without express or implied authority given by the owner or occupier or given on behalf of the owner or occupier by a person authorised to give it or without any other lawful excuse, wilfully enters any private place or Scheduled public place, unless for a legitimate purpose; or

(f) neglects or refuses to leave a private place or Scheduled public place after being warned to do so by the owner or occupier or a person authorised to give that warning on behalf of the owner or occupier, unless the person has a lawful excuse; or

(g) without lawful excuse, enters any place (whether private or public) in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace—

shall be guilty of an offence.

Penalty: 25 penalty units or imprisonment for six months.

(1A) In any proceedings for an offence against subsection (1) the statement on oath of any person that he is or was at any stated time the owner or occupier of any place or a person authorized by or on behalf of the owner or occupier thereof shall be evidence until the contrary is proved by or on behalf of the accused that such person is or was the owner or occupier of that place or a person authorized by or on behalf of the owner or occupier thereof (as the case requires).

(1B) A person may commit an offence against paragraph (d), (e), (f) or (g) of subsection (1) even though he or she did not intend to take possession of the place.

(1C) Without limiting paragraph (e) of subsection (1), examples of circumstances in which a person does not have express or implied authority to enter a place are—

(a) the person enters that place after having been previously warned not to enter by the owner or occupier or a person authorised to give such a warning on behalf of the owner or occupier; or

(b) the person enters that place despite being then warned not to enter by the owner or occupier or a person authorised to give such a warning on behalf of the owner or occupier; or

(c) the person enters that place in breach of a prominently displayed sign erected at that place by the owner or occupier or a person authorised to erect such a sign on behalf of the owner or occupier stating that—

(i) the person concerned, or a class of persons of which the person concerned is a member, is prohibited from entering that place; or

(ii) persons engaging in that place in the type of activity in which the person concerned is proposing to engage in that place are prohibited from entering that place—

and the person has no other lawful excuse for entering that place.

(1D) A warning may be given to a person under subsection (1)(f) or subsection (1C)(a) or (b)—

(a) orally; or

(b) by delivering written notice of it personally to the person; or

(c) except in the case of a warning under subsection (1)(f), by sending written notice of it by certified mail addressed to the person at his or her usual or last known place of residence.

(1E) A person may commit an offence against paragraph (g) of subsection (1) even though he or she had a right to enter that place in a manner other than that described in that paragraph.

(2) For the purposes of section 86 of the Sentencing Act 1991 the cost of repairing or making good anything spoiled or damaged in contravention of this section shall be deemed to be loss or damage suffered in relation thereto.

(3) Nothing contained in this section shall extend to any case where the person offending acted under a fair and reasonable supposition that he had a right to do the act complained of or to any trespass (not being wilful and malicious) committed in hunting or the pursuit of game.