What is Wilful Damage?

Wilful Damage is defined under Section 469 of the Queensland Criminal Code as the wilful and unlawful destruction or damage of property without the consent of the owner. Destruction of property is to render property imperfect or inoperative and includes vandalism and graffiti. Graffiti is the act of spraying, drawing or applying paint or another marking substance to property visible from a public place. The damage does not have to be permanent or long-lasting, and may include marking, defacing, removing or altering the property.

Wilful Damage is one of the most commonly reported criminal offences in Australia. In some circumstances, it is even possible for a person to be found guilty of damaging their own property. For example, where a person deliberately damages their car to make a spurious insurance claim.

Underreporting of Wilful Damage

It is difficult to gauge how many times the offence of Wilful Damage has occurred, because cases are often not reported to the police. Wilful damage is significantly underreported due to the disincentives in insurance policies to report minor damage, the low expectation of the offender being caught or the perceived minor nature of Wilful Damage offences.

When is Wilful Damage defendable?

  • No intent – Where damage has been caused accidentally, it will not be seen as 'wilful'. Because the damage was not intentional, no offence has occurred.
  • Consent was given – If the owner of the property has granted permission for that damage to their property, it is not capable of being Wilful Damage.
  • Emergency – If property was damaged in a situation where someone was in danger of death or serious injury, it is not an offence – for example, breaking a car window to save a passenger.
  • Duress – If damage is caused, and the person was under duress or compulsion, it will not be Wilful Damage.

What is the punishment?

Wilful damage is the simplest form of damaging property and is generally punishable by a maximum 5 years imprisonment. However, the offence may also be subject to the usual other penalties, including fines, probation, community service or good behaviour bonds. It is common for a court to order that a person pay to fix the damage they caused or pay compensation in an appropriate amount. There are several special cases of Wilful Damage, which may attract higher penalties. These include damage to:

  • Seawalls, including inland water (such as dams).
  • An official document, will or other deed or record.
  • A wreck (such as a shipwreck)
  • An aircraft, railway or train.
  • An educational institution, such as a school, university or child-care centre.
  • A cemetery, memorial or place of religious worship.
  • Anything of special value – including vessels, lighthouses, agricultural property or manufacturing property.
  • Or destruction by explosion.

Damage to seawalls or destruction by explosion may attract a sentence of life imprisonment, if the damage placed people's lives at risk or caused death.

How to report Wilful Damage

To report an incident of Wilful Damage, the Queensland Police have a simple online form. This service works particularly well if the case does not appear to be extremely serious (does not require immediate police attendance), or if you have been an eyewitness to alleged Wilful Damage to property and would like to notify the authorities.

What if you've been accused?

To be found guilty of Wilful Damage, there must be, beyond reasonable doubt, a finding that there was damage to property, belonging to another person, and that the damage was caused intentionally and wilfully.
If you choose to agree to these claims, you have the option to plead guilty, which will then proceed to the sentencing. If you decide to plead not guilty, a brief of evidence will be served. This contains all the evidence police have against you, and you have time to reconsider your guilty plea. If you'd like to continue, a hearing date will be set for your defended hearing.

Whether you plan to plead guilty or not guilty, you need a strong legal team by your side to ensure the best outcomes. At Russo Lawyers, we are equipped to deal with complicated legal cases and offer the best outcomes with our exceptional team of lawyers and support staff. Contact us today for more information on how we can help you.

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