Charged With Intentionally or Recklessly Destroying Property in NSW? What It Really Means

“Destroying or damaging property” (or malicious damage as it was previously known) under the Crimes Act 1900 (NSW) s 195, is treated more seriously than most people expect. It can carry up to five years imprisonment for more serious examples of the offence, and even a modest incident (a broken window, a dented car panel) can end in a criminal record if it is not handled carefully. That said, outcomes range widely. Early advice in how to best present your case is important, these early decisions will ultimately decide the outcome of your case.

Importantly the offence of intentionally or recklessly destroying/damaging property can cover far more than permanent damage to property and what property can be subject to a charge is far wider reaching than most people think.

What the Prosecution Has to Prove (The Proofs of the Offence)

For a charge under s 195, the prosecution has to prove each of the following beyond reasonable doubt:

• Property existed and belonged to another person. You cannot be convicted of damaging something that is only yours. Property that is jointly owned, even if you are one of the co-owners (for example, a marital asset) can still be subject to a criminal charge.
• You destroyed or damaged that property. Damage does not need to be permanent. Courts have accepted temporary impairment, smearing, denting, disabling, as damage. Anything that defaces property or impairs its ability to function can constitute an offence.
• You did so intentionally or recklessly. Recklessness here means you could have foreseen the possibility of damage and went ahead anyway. Something is that is purely accidental, like tripping and falling, does not amount to criminal behaviour unless there are other circumstances.

If any one of these elements are missing, the charge should not be made out. That is why the first job of your lawyers is to confirm your instructions, clarify whether the Prosecution can make out the proofs of the offence and the overall strength of the Prosecution case against you.

Aggravated Versions of the Offence

The base offence sits at s 195(1)(a). It becomes more serious if:

• Fire or explosives were used (higher maximum penalty), or
• If the property has special significance (such as a War Memorial), or
• It was done in the context of domestic violence, or
• The damage was done “in company,” that is, with other people present and participating.

Domestic-violence-related property damage is also flagged on your record as a domestic violence offence, which has consequences well beyond the sentence itself, including for any current or future AVO. If there is an AVO in play, our note on contravening an AVO in NSW is important to consider.

Why People Underestimate This Charge

Many people in this position hear “intentional or reckless damage” and picture a slap on the wrist. A few reasons that assumption goes wrong:

• It is a criminal offence. Unlike a fine in the mail, a s 195 charge puts you in front of a Judge.
• A conviction shows up on any criminal record checks. This can affect employment, professional licences, working with children checks, and travel to certain countries.
• Bail conditions can bite hard. Non-association conditions, exclusion zones, and curfews are common, particularly where the alleged victim is a family member or ex-partner.
• If it was done in a domestic violence context. If the incident took place in a domestic violence situation there will be a final Apprehended Domestic Violence Order made to protect the victims. This can result in the end of relationships, difficulty seeing children and being excluded from the family home.

The Realistic Range of Outcomes

Assuming the matter stays in the Local Court (as most s 195 matters do), the sentencing options available to the magistrate include:

• Section 10(1)(a) dismissal under the Crimes (Sentencing Procedure) Act 1999 (NSW), the charge is proven but dismissed with no conviction recorded and no further order. This is very rare for this offence.
• Conditional release order without conviction (s 10(1)(b)), no conviction, but you are placed on a good behaviour bond with conditions for up to two years.
• Conviction with a fine, a criminal record, plus a monetary penalty.
• Conditional release order with conviction, a bond with conditions and a recorded conviction.
• Community correction order, for most matters, a type of bond in the community with conditions such as community service or supervision.
• Intensive correction order or full-time imprisonment, reserved for the more serious cases, particularly where there is a pattern of offending or significant damage.
• Full-time imprisonment. While the least common of the realistic outcomes, depending on the value of the property damage, up to approximately 15% of people charged with this offence end up in custody (or 50% if matters are finalised in the District Court of NSW).

It is also very common for a compensation order to be made as part of any sentence you receive. This compensation is often sought by the Prosecution so that the victim of the property damage is not left out of pocket, it should not exceed the value of the property damage done. This compensation payment is not normally considered part of the punishment.

What to Do Next

If you have been charged, here is a step by step approach that tends to serve people well:

1. Do not contact the alleged victim. This will likely create fresh problems in your case or lead to more serious criminal charges.
2. Write down what happened while it is fresh. Times, locations, who was there, what was said (using the actual words spoken), how much you had to drink. Keep it for your lawyers, not for anyone else.
3. Preserve evidence. Text messages, photos, receipts, dashcam or doorbell footage. Digital material disappears fast.
4. Get Legal Advice early in the matter. It is important to understand your rights, any obligations you may have and what evidence needs to obtained as soon as possible.

Should You Plead Guilty or Defend the charge?

The short answer: it depends. The pros and cons run something like this:

• Pleading guilty early attracts a discount on sentence (typically up to 25% for the earliest possible plea) and demonstrates responsibility. But it means agreeing the offence took place, and in most cases that you agree the “Facts Sheet” or story the Prosecution has wants to tell the Court about how the offence took place is accurate.
• Defending the charge preserves the possibility of a not guilty finding, but takes longer, costs more, and, if you lose, usually results in a harsher sentence than an early plea would have.

This is a crucial decision and not one to make on your own.

We Can Help

If you have been charged with destroying or damaging property anywhere in NSW, from the Illawarra to the Hunter to Sydney, the earlier you get advice, the more room there is to shape the outcome. Whether you are weighing up a plea, or want a second opinion on the brief, reach out to the Conditsis criminal law team and we will talk you through your situation, your options, and what happens next.