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Criminal Damage In Perth

There are a number of criminal offences relating to the unlawful damage of property in Western Australia. These offenses are governed by the Criminal Code Act Compilation Act 1913. This article deals with what happens when a person is charged with criminal damage in Perth or elsewhere in WA.

Section 444: criminal damage

Under section 444 of the Criminal Code Act Compilation Act, a person who wilfully and unlawfully destroys or damages property is guilty of a crime. The maximum penalty that applies is 10 years imprisonment.

If the crime is committed under circumstances of aggravation, the maximum penalty is increased to imprisonment for 14 years.

If the property is destroyed or damaged by fire, the maximum penalty is imprisonment for life.   

Circumstances of aggravation

Circumstances of aggravation are set out in section 231 of the Act. They are:

  • Where the offender is in a family relationship with the victim
  • Where there was a child present at the time the offence was committed
  • Where the offence constituted a breach of an order
  • Where the victim was over the age of 60.

Criminal damage in Perth – what if you are the owner of the property?

A person can be charged with an offence under section 444 if they destroy or damage their own property. This may occur when a person deliberately damages property that is insured in order to make an insurance claim. 

Section 445 Damaging property

Under section 445 of the Act, a person who unlawfully damages property belonging to another person without that person’s consent is guilty of an offence. This offence is punishable by a fine of up to $24,000 or imprisonment for two years.

Defences

There are a number of defence that can be advanced in response to a charge of damaging property in Perth. Some of these are outlined below.

Emergency

It is not an offence to damage property in an emergency. A person may raise sudden and extraordinary emergency as a defence to criminal damage where they broke a window in order to take shelter from a cyclone inside a building or where a person ripped up another person’s clothing in order to bandage wound. 

Accident

It is not an offence to damage property accidentally. A person may raise the defence of accident if the property damage was not done intentionally or recklessly.

Consent

It is not an offence to damage property with the owner’s consent. A person may rely on this defence if they damaged property after being given permission to do so.

Jurisdiction

An offence under section 445 is a summary offence. This means that it will be dealt with in the summary jurisdiction, which is the Magistrates Court if the accused is an adult and the Children’s Court if the accused is under 18.

An offence under section 444 is an indictable offence. Indictable offences can be dealt with on indictment in the District Court or Supreme Court. The penalties that can be imposed in these courts are much more severe than the penalties that can be imposed by a magistrate. However, offences under section 444 can be dealt with as summary offences with the consent of the defence and prosecution. This means a quicker and less formal court process, lower legal costs and likely a lesser penalty.

If a matter is to be dealt with on indictment, it must go through a procedure called a committal. At a committal hearing, a magistrate assesses the strength of the prosecution case. If there is enough evidence to support the charge, the matter is committed to a higher court. If there is insufficient evidence, the charge is dismissed.

Criminal damage matters are sentenced with consideration of the extent of the damage caused, the manner in which the damage was caused, whether there was preparation and premeditation and the extent of this and the offender’s motives.

Reparation Orders

In Western Australia, when a court deals with a criminal damage matter, it may make a Reparation Order. This is an order requiring the offender to pay for some or all of the cost of the damage that was caused.

A Reparation Order is imposed in addition to any sentence that is handed down (not as part of the sentence). It may be made by the court at its own initiative or after an application by the victim or by the prosecution.

Courts will generally only make Reparation Orders when the offender has the capacity to pay. If the offender has limited financial means, they may be allowed to pay in instalments. Reparations Orders will generally not be made against juveniles.

If you require legal advice or representation in relation to criminal damage in Perth or in any other legal matter, please contact Go To Court Lawyers.

Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.

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