Malicious Damage In NSW

Malicious Damage In NSW

Malicious Damage In NSW

What does the term malicious damage mean, and how do the rules around malicious damage to property apply in New South Wales? If you meant to cause harm, you are said to have acted maliciously thus it was an intentional act. This form of destruction refers to damage that was motivated by spite or vindictiveness where the person intended to cause harm. Malicious damage can also be referred to as a property damage offence as it involves destroying or damaging property belonging to another person. The Australian Institute of Criminology reports that in NSW, the most widely reported criminal offence is malicious damage. This form of damage includes the destruction of property, vandalism, damage through fire or explosives and graffiti.

State Legislation

There are specific differences in legislation from state to state in Australia. The root of the offence remains the same, but there are variations concerning outcomes. For example, in the 1900 Crimes Act under Section 195, the damage to another person’s property must be judged to have been done recklessly and deliberately in New South Wales. Interestingly, if the crime is perpetrated in the company of other people, then the period of imprisonment is likely to be longer. If explosives or fire are used to destroy or damage property, the penalties will be more significant. In New South Wales, malicious damage is no longer an explicit offence. It has been changed and is now referred to as intentionally or recklessly destroying or damaging property belonging to someone else. If you want more information to refer to, go to the Crimes Act 1900, section 195. Graffiti and vandalism cases come under a 2008 Act called the Graffiti Control Act.

What Is Property?

Property is a thing or several things that belong to someone – something they possess. It includes personal property like money, instruments, tools, etc., as well as homes, sheds, windows, and items related to the title of a property.

What Is Considered Damage?

Reckless destruction or Drunk driving can include punching or kicking a hole in a door or wall, scratching someone’s car, slashing tyres, breaking off a windscreen wiper or painting graffiti on walls. It can also include cutting up someone’s clothing, causing damage during a break-in, like breaking vases or glassware, flooding, erasing important information on a personal computer. Destroying something can be pretty difficult to prove. It means that the item is not entirely useless. It can be harder to show an item has been destroyed rather than damaged. Malicious damage implies that the person intended to cause damage. If the property damage prevents a person from using the property for some time, it fits under this heading. Damage does not have to be permanent to be considered malicious damage. If the case is to be prosecuted, it has to be proven beyond reasonable doubt that the perpetrator did destroy or damage the property maliciously.

What Should You Do?

If you discover that some of your property has been maliciously destroyed, what should you do? Your first call of action is to contact the police as a report is required for a malicious damage claim.

The Prosecutor

The prosecutor can decide to take the case to a local court or to a higher court where there is a trial, and the jury decides. There are three things the police have to prove in these cases to determine whether a person is guilty of this offence.
  1. Property must have been destroyed or damaged.
  2. The property damaged must belong to someone else.
  3. The court must believe the action has been done recklessly and intentionally.
Number 3, relating to intent, is complex relating to the law. The circumstances will be considered extremely carefully.


A person charged with malicious damage will have to decide if they will plead guilty or not guilty. If the accused person pleads not guilty, they will be required to prove that they have been accused wrongfully. They may prove that they were not present or that they caused the damage under duress. If pleading not guilty, the person will be served with a brief of evidence collected against them. The brief includes police evidence that will be used in an attempt to convict. The person pleading not guilty will need to gain the services of a solicitor who will examine the brief with them. Depending on the case’s circumstances, they may be able to demonstrate that the offence was an accident or not voluntary, that the item belonged to them, that they had a mental illness. Time is provided to consider evidence; then, the person will have the opportunity to keep their not guilty plea or change their plea to guilty. A court hearing date will then be set. When the case goes to court, the court will call witnesses to testify.


There are many outcomes if someone is found and charged with causing malicious damage. The penalties given will depend on the nature of the damage and the value of the property damage caused. The conviction of property damage can go onto the perpetrator’s record.  Penalties include: a. Imprisonment – Imprisonment is the most serious penalty as it involves being imprisoned full time in a correctional facility. The maximum penalty is five years imprisonment. b. Intensive Correction Order – An intensive correction order is where the court instructs the perpetrator to conform to several set conditions. These can include attending a particular treatment or counselling, not drinking any alcohol, undertaking community service or observing a curfew. c. Suspended Sentence – This is where the person is ordered to observe some jail time, but that time has been suspended as long as their behaviour is good and no other offences occur. d. Good Behaviour Bond – This is a court order that necessitates the perpetrator to be of good behaviour for a specific time. There will be conditions put in place by the court during that period. Five years is the maximum length of a good behaviour bond. e. Community Service Order – A perpetrator given a community service order is required to undertake community work for a given number of weeks, months or years. f. Fine – At times, a fine is the result of wrongdoing. In these situations, the court considers the value of goods damaged and the type of damage to find a suitable fine amount. The person is required to pay the fine. Having a criminal record means it can impact future employment, which can affect long term income. Aims To Reduce Damage And Graffiti Many councils and governments have been working hard to reduce malicious damage to property and graffiti. Damage has been an ongoing issue in many states, and it is a highly costly problem. Councils have been working to improve lighting in areas that have proved vulnerable and provide spaces where graffiti artists can showcase their skills. The Australian Institute of Criminology Considerable research has researched the New South Wales Government. They have found that most people arrested concerning suspicion of malicious property damage are young males. Most damage occurs over the weekend, and there are more significant issues in areas where there are high levels of unemployment. Interestingly quite a bit of the community damage/graffiti done is not committed maliciously or out of anger but rather due to boredom and disengagement.


It is a serious criminal offence to damage the property of other people. The penalties for malicious damage of items belonging to another person can be substantial, up to a 5-year maximum sentence of imprisonment for someone found guilty. The penalties vary depending on the severity of the offence committed. Seek legal advice as a barrister can advise you about possible outcomes and provide representation in court if required. Legal representation is the key to success.

Frequently Asked Questions

1. Can a person be charged with malicious destruction to their personal property?

Answer: A charge cannot be brought against a person if they destroy their property. 2. How do I prove the destruction of my property? Answer: If property belonging to you has been destroyed or damaged, you need to call the police to make a report. Take photos of the item so that you have evidence of the damage. Photographs will provide you with proof if you are unable to find a witness. What needs to be proven is that the property was intentionally or recklessly damaged. 3. What are some examples of malicious harm to a person’s property? Answer: Malicious damage could include damage to someone’s car, spray painting a car or house, indoor or out, smashing household items or setting fire to something.

Simon Fletcher is the Principal Solicitor at FletchLaw. He has been admitted as a solicitor to the High Court of Australia and the Supreme Court of New South Wales. His academic qualifications include of a Bachelor of Laws, a Graduate Certificate in Professional Legal Practice and a Master of Applied Laws (Mediation and Family Law Dispute Resolution). He can offer assistance in a wide variety of legal areas.

Do you have a problem with Malicious Damage or any other legal issue? Call us on 02 9159 9026 to find out how we can help.

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