What Is Malicious Damage in NSW?
The offence of Malicious Damage to property is a serious offence in NSW. It is contrary to section 195 Crimes Act 1900 which states:
A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable:
- to imprisonment for 5 years, or
- if the destruction or damage is caused by means of fire or explosives, to imprisonment for 10 years.
In NSW, malicious damage is usually referred to as Destroy or Damage Property.
You can be charged with this offence whether the property belongs to an individual, a company, or even the government. The term “property” can include a wide range of items, such as vehicles, windows, doors, fences, or even mobile phones and personal belongings.
Common Types of Property Damage Offences in NSW
The offence of destroying or damaging property can take many forms, including:
Breaking someone’s window or car windscreen
Scratching or spray-painting a vehicle
Smashing a phone or television
Setting fire to property
Even if the damage seems minor or the property is later repaired, the act may still amount to a criminal offence.
What The Prosecution Need To Prove?
To secure a guilty verdict for destroy/damage property, the prosecution bears the onus and must prove beyond a reasonable doubt that, the accused:
- Intentionally or recklessly,
- Destroyed or damaged,
- Property belonging to another or property belonging to the accused and another.
Recklessness
When recklessness is alleged, the prosecution must prove foresight of damage to property. Further, the necessary foresight, where recklessness is alleged, is not confined to foresight of damage to or destruction of that specific property. It is sufficient that the foresight be in relation to property more generally.
Penalties for Property Damage Charges in NSW
In New South Wales, the offence of malicious damage to property — known as destroying or damaging property — is treated seriously by the courts. The penalties vary depending on the value of the property damaged, whether the damaging act was intentional or reckless and the manner of the damage.
Maximum Penalties Under the Law in NSW
The maximum sentence for malicious damage depends on the circumstances of the offence:
5 years’ imprisonment if the offence is committed by a person acting alone.
6 years’ imprisonment if the offence is committed in company with another person.
10 years’ imprisonment if the property was destroyed or damaged by means of fire or explosives.
The Court may impose a non-custodial sentence if the circumstances warrant it. They include:
Section 10 dismissal
Conditional Release Order (with or without conviction)
Fines
Community Correction Order
Intensive Correction Order (custodial sentence served in the community
- Imprisonment
Defences to Destroy/Damage Property Charge
If you’ve been charged with destroying or damaging property in New South Wales, you may have a legal defence available depending on the specific circumstances.
No Intent to Cause Damage
A key element of the offence is intentional or reckless conduct. If the property was damaged unintentionally — for example, through a genuine accident — this may be a defence. Accidental damage is not enough to support a finding of guilt.
Acting Under Duress or Necessity
In some cases, a person may damage property because they were under duress — that is, they were threatened with harm unless they acted. Alternatively, the defence of necessity may apply if the action was taken to prevent immediate and serious harm, such as breaking down a door to escape danger.
Insufficient Evidence or Disputed Facts
Sometimes, the prosecution may not be able to prove who or what caused the damage . If the evidence is weak or contradictory, a Criminal lawyer can challenge the case and push for the charge to be dismissed.
Charged with Property Damage in NSW?
Facing allegations of malicious damage or destroying property can lead to serious legal consequences. Our criminal defence lawyers can assess your case, explain your legal options, and advocate for the best possible outcome.
Contact AMA Legal today for a confidential consultation.
RELATED ⇒ Apprehended Domestic Violence Order
If the offence is charged as a domestic violence offence, police will also apply for an Apprehended Domestic Violence Order (ADVO). An ADVO imposes enforceable conditions that restrict the defendant’s behaviour to protect the alleged victim.
Read our Blog About AVOs in NSW
RELATED ⇒ Breach of AVO NSW
Damaging property can amount to a breach of the mandatory condition in an AVO if the order is in force. This will result in a separate criminal charge of contravening a prohibition or restriction in an AVO under section 14 of the Crimes (Domestic and Personal Violence) Act 2007.
Learn more about breach of AVO offences in NSW.
For a consultation with a Criminal Lawyer, call AMA Legal on (02) 8610 3764.
