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Charged with intentionally or recklessly destroying or damaging property? What You Need to Know
Also known as malicious damage, the charge of intentionally or recklessly destroying or damaging property is found under section 195 of the Crimes Act 1900 (NSW). The basic offence carries a maximum penalty of 5 years imprisonment, rising to 10 years where the damage is caused by fire or explosives.
A phone thrown during an argument, a door kicked in anger, a car scratched in a dispute with a neighbour, or a window broken on a night out can all lead to the charge. The law covers reckless damage as well as deliberate damage, and the property does not need to be expensive or permanently destroyed.
The Crimes Amendment Act 2007 replaced malice as a fault element with “intentionally or recklessly.” Your court attendance notice will read “intentionally or recklessly destroy or damage property,” and the offence is still widely known as malicious damage.
Outcomes vary widely, with the maximum penalty depending on the value of the damage. Yet, most matters are finalised in the Local Court and non-conviction outcomes are commonly achieved for first-time offenders where the damage is minor and repaid.
The Australian Legal Practice represents clients facing malicious damage charges across Burwood, Sydney CBD, and Parramatta. Our lawyers are available 24/7, and the first consultation is free.
Call (02) 8084 9929 to arrange a free consultation with a principal lawyer.
What Is Intentionally or Recklessly Destroy or Damage Property Damage?
Intentional or recklessly destroy or damage property is the offence of destroying or damaging property that belongs to another person, or that you own jointly with another person, where you acted intentionally or recklessly.
The offence has three components:
- You destroyed or damaged property
- The property belonged to another person, or to you and another person jointly
- You acted intentionally, or were reckless about whether your actions might destroy or damage the property
The High Court considered the meaning of “damage” in Grajewski v Director of Public Prosecutions (NSW) [2019] HCA 8. The Court held that damage requires some alteration to the physical integrity of the property, even if only temporary:
- Covered: breaking, scratching, denting, marking, defacing, or otherwise physically altering the property, including damage that can be repaired
- Not covered: interfering with the use or function of property without physically altering it, for example temporarily stopping a machine from operating without touching its physical integrity
Conduct that can result in a charge includes:
- Breaking a partner’s or family member’s phone during an argument
- Punching a hole in a wall or kicking in a door in a rented or shared home
- Scratching, denting, or breaking the windows of a car
- Spray painting or permanently marking a building, fence, or vehicle
- Smashing a shop window or damaging public property such as bus shelters
- Setting fire to property, which is charged under the more serious fire or explosives limb
Jointly owned property is covered. Damaging property in a home you share with a partner can still result in a charge, even if you contributed to buying it.
Malicious damage is distinct from several related offences:
- Graffiti offences (section 4 Graffiti Control Act 2008): intentionally marking premises or property without consent, generally a fine-only offence unless committed in circumstances of aggravation
- Destroying or damaging property with intent to injure a person (section 196): damage committed with the intention of causing bodily injury to another person
- Destroying or damaging property dishonestly (section 197): damage committed dishonestly with a view to making a gain, such as an insurance fraud
- Destroying or damaging property with intent to endanger life (section 198): the most serious damage offence which is strictly indictable and results in maximum 25 years imprisonment
- Threatening to destroy or damage property (section 199): making a threat to damage property, without the damage occurring
Intentionally or Recklessly Destroy or Damage Property Under Australian Law
Section 195(1) of the Crimes Act 1900 (NSW) provides:
“A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable (a) to imprisonment for 5 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 10 years.”
The maximum penalty increases where the offence is committed in company or during a public disorder:
Offence | Section | Maximum Penalty | Fire or Explosives |
Intentionally or recklessly destroy or damage property | s 195(1) | 5 years imprisonment | 10 years imprisonment |
Destroy or damage property in company | s 195(1A) | 6 years imprisonment | 11 years imprisonment |
Destroy or damage property during a public disorder | s 195(2) | 7 years imprisonment | 12 years imprisonment |
Destroy or damage property with intent to injure a person | s 196 | 7 years imprisonment | 14 years imprisonment |
Destroy or damage property dishonestly with a view to gain | s 197 | 7 years imprisonment | 14 years imprisonment |
Destroy or damage property with intent to endanger life | s 198 | 25 years imprisonment | 25 years imprisonment |
Threaten to destroy or damage property | s 199 | 5 years imprisonment, or 7 years during a public disorder | Not applicable |
Jurisdiction and court:
- The court and maximum Local Court penalty for the basic and in-company offences depend on the value of the damage
- Where the value of the damage is $5,000 or less, the offence is a Table 2 offence, dealt with in the Local Court unless the prosecution elects to have the matter heard in the District Court
- Where the value of the damage exceeds $5,000, the offence is a Table 1 offence, dealt with in the Local Court unless either the prosecution or the accused elects to have the matter heard in the District Court
- The offence under section 198, intending to endanger life, cannot be finalised in the Local Court and must be dealt with in the District Court
- Where the damage occurred in a domestic relationship, the charge is treated as a domestic violence offence, which can trigger an ADVO application
What Must the Prosecution Prove?
To secure a conviction under section 195, the prosecution must prove each of the following elements beyond reasonable doubt:
- You destroyed or damaged property
- The property belonged to another person, or to you and another person jointly
- You acted intentionally, or were reckless about whether your actions might destroy or damage the property
For the aggravated forms, the prosecution must also prove:
- Fire or explosives: the destruction or damage was caused by fire or explosives
- In company: you committed the offence in the company of another person or persons
- Public disorder: the offence was committed during a public disorder, such as a riot
If the prosecution cannot prove any one of these elements, the court must find you not guilty.
Two points about these elements matter in practice:
- Physical damage: following Grajewski v DPP (NSW) [2019] HCA 8, the prosecution must prove an alteration to the physical integrity of the property
- Accidental damage: damage caused accidentally, without intention or recklessness, does not amount to the offence
The value of the damage determines the maximum fine in the Local Court and whether the matter is a Table 1 or Table 2 offence. Repair quotes and invoices are often contestable, so the value alleged by police should be reviewed before it is accepted.
Penalties for intentionally or recklessly destroying or damaging property in NSW
Value of Damage | Table | Maximum Penalty in the Local Court |
$2,000 or less | Table 2 | 2 years imprisonment and/or 20 penalty units ($2,200) |
More than $2,000 and up to $5,000 | Table 2 | 2 years imprisonment and/or 50 penalty units ($5,500) |
More than $5,000 | Table 1 | 2 years imprisonment and/or 100 penalty units ($11,000) |
Any value, District Court | Not applicable | 5 years imprisonment (10 years by fire or explosives) |
Sentencing options available to the court:
- Section 10 dismissal (no conviction recorded)
- Conditional Release Order (CRO) with or without conviction
- Fine
- Community Correction Order (CCO)
- Intensive Correction Order (ICO), served in the community
- Full-time imprisonment
Factors that influence the severity of the penalty:
- The value and nature of the damage, with fire damage treated most seriously
- Whether the damage was a single impulsive act or part of a planned or repeated course of conduct
- Whether the damage occurred in a domestic violence context, which is an aggravating factor
- Whether the offence was committed in company or during a public disorder
- Whether the damage has been repaired or the owner compensated
- Intoxication, mental health, or provocation at the time, and any treatment undertaken since
- Prior criminal history, particularly for property or violence offences
- Genuine remorse and an early guilty plea, which attracts a discount of up to 25 per cent
For a first offence involving minor damage that has been repaid, a section 10 dismissal or a CRO without conviction is commonly achieved. Fire damage, damage in a domestic violence context, and repeat offending are more likely to attract a conviction and, in serious cases, imprisonment.
Other consequences of a conviction include:
- Criminal record affecting employment, travel, and licensing
- An ADVO where the damage occurred in a domestic relationship, with consequences for housing, firearms licences, and parenting arrangements
- Immigration consequences for non-citizens under the character test in the Migration Act 1958
Possible Defences Against Intentionally or Recklessly Destroy or Damage Property charges
Several defences can result in a malicious damage charge being dismissed or withdrawn.
- Accident: the damage was caused accidentally, and you did not intend it and were not reckless about it
- No physical damage: the property was not physically altered, applying Grajewski v DPP (NSW) [2019] HCA 8
- Sole ownership: the property belonged solely to you, with no other person holding an ownership interest
- Consent: the owner consented to the property being damaged or destroyed
- Claim of right: you honestly believed you had a legal right to damage the property, even if that belief was mistaken
- Duress: you were forced to cause the damage by threats of serious harm from another person
- Necessity: the damage was necessary to avoid an imminent and greater harm, for example breaking a window to escape danger
- Mistaken identity: you were not the person who caused the damage
- Mental health: where a mental health or cognitive impairment was a relevant factor, an application under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) can result in the matter being dealt with by way of a treatment plan rather than a conviction
Every defence is assessed on the specific facts, including CCTV, witness accounts, ownership records, repair evidence, and any admissions made during a police interview.
Your Options When Charged with Intentional or Recklessly Destroy or Damage Property
Option | What It Means |
Negotiate with the prosecution | Where intent, ownership, or the value of the damage is contestable, representations can result in the charge being withdrawn, the value amended to a lower threshold, or the facts amended |
Plead not guilty | Contest the charge at a defended hearing, where the prosecution must prove physical damage, ownership by another, and intention or recklessness beyond reasonable doubt |
Plead guilty and seek the best outcome | An early guilty plea attracts a sentencing discount of up to 25 per cent; repairing the damage or compensating the owner, character material, and evidence that the conduct was out of character can support a section 10 dismissal or CRO without conviction |
Why Choose The Australian Legal Practice for Intentionally or Recklessly Destroy or Damage Property Charges
- Principal-level representation. You deal directly with an experienced senior lawyer
- 24/7 availability on (02) 8084 9929. Intentionally or recklessly destroy or damage property charges often follow a domestic incident or a night out, at any hour
- Three Sydney offices: Burwood, Sydney CBD, and Parramatta
- Free initial consultation so you can understand the value threshold that applies and the realistic outcomes
- Fixed-fee arrangements available for standard malicious damage matters heard in the Local Court
- Experience challenging the value of damage alleged by police, which determines the Local Court penalty range
- Advice on arranging repair or compensation before sentencing, which the court takes into account when deciding whether to record a conviction
- Advice on associated ADVO proceedings where the damage occurred in a domestic relationship
Call (02) 8084 9929 to arrange a free consultation with a principal lawyer.
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Frequently Asked Questions About Malicious Damage
Yes, but under a different name. The offence is now intentionally or recklessly destroying or damaging property under section 195 of the Crimes Act 1900 (NSW). The word “maliciously” was removed by the Crimes Amendment Act 2007, but the offence is still commonly called malicious damage.
Yes. Section 195 covers property belonging to another person or to you and another person jointly. Damaging jointly owned property, such as furniture or a phone in a shared home, can result in a charge.
Not automatically. Police are not required to withdraw a charge because the damage has been repaired or paid for. Repair or compensation is still relevant to negotiations and to sentencing, and often supports a non-conviction outcome.
It can. Graffiti can be charged under section 4 of the Graffiti Control Act 2008, which is generally a fine-only offence, or under section 195 of the Crimes Act 1900 where the marking alters the physical integrity of the property. The section 195 charge carries a far higher maximum penalty.
For a first offence involving minor damage, imprisonment is unlikely, and non-conviction outcomes are commonly achieved. The risk of imprisonment increases significantly for damage by fire or explosives, damage in a domestic violence context, high-value damage, and repeat offending.
Speak to a criminal defence lawyer today on (02) 8084 9929 or book a free consultation online.
