Destruction or Damage to Property in Victoria

Under Victorian law, it is an offence to intentionally cause the destruction of, or cause damage to property belonging to another.[1] Destruction means to render the item useless for the purposes of which it exists. Damage means to cause temporary or permanent harm to the property, thereby reducing its value, utility or functionality.[2]

‘Property’ is defined as tangible items (real or personal) and includes money and domestic animals (dogs, cats etc).[3] Intangible items are not included for the purposes of this offence (unlike a theft offence). Ownership can include having custody or charge of an item or having certain proprietary rights to it.[4]

Examples of this offence can include smashing the front windscreen of someone else’s car or destroying someone’s mobile phone.

Elements of the Damage to Property Offence

To prove a damage or destruction to property offence, the Police are required to establish beyond reasonable doubt that you:

1. Intentionally;
2. Caused damage to or destroyed property;
3. That belonged to another person; and
4. Had no lawful excuse to do so.[5]

Possible Penalties

In Victoria, the maximum penalty for the damage or destruction to property is 10 years imprisonment.[6]

You could also be charged with an alternate offence of ‘wilful damage’ if the alleged damage to the property is less than $5,000.[7] This offence carries a maximum penalty of 6 months imprisonment.

Available Defences to Destruction or Damage to Property

It is a defence to a charge of destroying or damaging property if you had a ‘lawful excuse’ to do so. This is where you believed that the damaged or destroyed property:

• Belonged to you or that you had rights to it;
• That the owner had consented to the damage to property or its destruction; or
• You were protecting property belonging to yourself during the commission of the alleged offence.[8]

Belief in a lawful excuse is not required to be justified or honestly held.[9]

It is imperative that the Police prove that you intended to commit the offence. ‘Intent’ is where you believed your conduct would result in damage or destruction to property, or that your conduct is more than likely to result in the damage or destruction.[10] You may have the defence of lack of intent available if it was not your intention to cause damage to or destroy the property.

Other defences such as duress may also exist.

You may also have a defence of reasonable mistake or a factual dispute relating to the charge.

We suggest that you should contact an experienced legal practitioner as soon as possible if you are to be interviewed in relation to a damage or destruction to property offence so that you can be provided with appropriate advice based on the circumstances relevant to your matter.

A note on Criminal Damage with intent to Endanger Life

Criminal Damage with intent to endanger life is a separate offence where the life of another is in danger as a result of the damage or destruction to property. To establish this offence, it must be proven that you:

1. Destroyed or damaged property;
2. Intentionally;
3. You intended the damage or destruction to endanger the life of another person; and
4. You did not have a lawful excuse.[11]

Threatening or endangering the life of another in the commission of the offence is treated more seriously and can carry a penalty of up to 15 years imprisonment.[12] Further, the defence of lawful excuse is not available to this charge; however, there are defences available at common law.

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[1] Crimes Act 1958 (Vic) s 197(1).
[2] Samuels v Stubbs [1972] 4 SASR 200.
[3] Crimes Act 1958 (Vic) s 196(1).
[4] Crimes Act 1958 (Vic) s 196 (2).
[5] Crimes Act 1958 (Vic) s 197(1).
[6] Crimes Act 1958 (Vic) s 197(1).
[7] Summary Offences Act 1966 (Vic) s 9(1)(c).
[8] Crimes Act 1958 (Vic) s 201(2)(a).
[9] Crimes Act 1958 (Vic) s 201(3).
[10] Crimes Act 1958 (Vic) s 197(4).
[11] Crimes Act 1958 (Vic) s 197(2).
[12] Crimes Act 1958 (Vic) s 197(2).