Destroying or damaging property in NSW.

What is the offence of destroying or damaging property?

The charge lives in section 195 of the Crimes Act 1900 (NSW). The old name for it was malicious damage. The section now reads that a person who intentionally or recklessly destroys or damages property belonging to another, or to that person and another, is guilty of an offence.

There are three elements, and the Crown must prove each beyond reasonable doubt. First, that the accused destroyed or damaged property. Second, that the property belonged to another person, or to the accused and another person. Third, that the accused acted either intending to cause the damage, or being reckless as to whether damage would occur. If any one of these is missing, the charge fails.

Recklessness has a settled meaning here. It is not enough that a careful person would have seen the risk. The Crown must prove that the accused actually foresaw the possibility that their act would damage the property, and went ahead anyway. That is a real state of mind, proved by inference from what the person did and said. A pure accident, where there was no intention and no foresight of the risk, is not an offence under section 195.

What counts as damage to property?

Damage is read broadly, but it is not without limits. The leading authority is the High Court decision in Grajewski v Director of Public Prosecutions (NSW) [2019] HCA 8. The Court held that damage requires some physical harm to the property, or some change to its physical condition that impairs its value or usefulness. A protester who climbed a coal loader and caused it to be shut down was found not to have damaged it, because the machine itself was not physically altered.

In everyday cases the line is easy to cross. The damage does not need to be permanent, and the property does not need to be destroyed. A dent, a scratch, a crack, a torn screen, or a wall that needs repainting all qualify. Damage that can be cleaned or fixed still counts. Graffiti is treated as damage even where it can be removed, because removing it takes time, effort, and expense. What matters is that the physical state of the thing was altered in a way that reduced its value or usefulness.

Property is defined widely in section 4 of the Act. It takes in real property such as buildings and fences, and personal property such as cars, phones, furniture, and clothing. The value of the thing damaged does not decide whether an offence has occurred. It decides which court hears the matter and where the penalty falls.

Can you be charged with damaging your own property?

The section only bites where the property belongs to another person, or to the accused and another person. Damaging something that is solely your own is not an offence under section 195. The trap is joint ownership. The words of the section reach property that belongs to the accused and another.

This matters most in the home. A person who punches a hole in the wall of a house they own with their partner, or who smashes a television or a phone that is jointly owned, can be charged even though they part own the item. It is a point that surprises many people who assume that damaging their own things cannot be a crime. Where ownership is genuinely in dispute, or the item was solely the accused's, that is a real defence and it needs to be established on the evidence.

What is the penalty for destroying or damaging property in NSW?

Section 195 sets out a ladder of maximum penalties. The base figure applies to ordinary property damage, and the maximum climbs where the damage is caused in a more serious way.

Basic offence. Five years imprisonment for intentionally or recklessly destroying or damaging property.

By fire or explosives. Ten years imprisonment. This is the fire version of the charge. We deal with fire cases in full in our note on arson and bushfire offences, which also covers the more serious fire charges in sections 196 to 198.

In the company of others. Six years imprisonment, rising to 11 years if the damage is caused by fire or explosives. Being part of a group that damages property lifts the maximum, because damage done in company is treated as more serious.

During a public disorder. Seven years imprisonment, rising to 12 years if the damage is caused by fire or explosives. This is aimed at damage done during a riot or a large public disturbance.

War memorials and aggravated cases. Damage to a war memorial carries seven years. A separate aggravated form, added for property such as a car used in connection with a serious crime, carries up to 12 years. These forms are used less often, but they are on the books.

There is no standard non-parole period for a section 195 charge. The maximum is a ceiling, not a starting point, and most property damage cases are dealt with well below it. The court sentences on the facts of the case and the person in front of it.

Which court hears a property damage charge?

Almost all property damage charges start and finish in the Local Court. The value of the damage decides who can send the matter up to the District Court. Where the value of the property is more than $5,000, the basic offence is a Table 1 matter, which means either the prosecution or the accused may elect to have it dealt with in the District Court. Where the value is $5,000 or less, it is a Table 2 matter, and only the prosecution may elect.

When the matter stays in the Local Court, the maximum term drops to two years for the single offence. Legal Aid NSW notes that where the damage is worth less than $2,000, the Local Court penalty is capped at a fine of $2,200 as well as the two year ceiling. For most people, keeping the matter in the Local Court is the better outcome, because the sentencing range is lower. That decision is one of the first things we look at. Our note on the Local Court mention explains how the early stages of a case run.

Property damage as a domestic violence offence.

A large number of section 195 charges arise out of arguments between partners, family members, or people who live together. When the damage is done to a person the accused has a domestic relationship with, or their property, the charge is recorded as a domestic violence offence. That label carries consequences beyond the charge itself.

Police will very often apply for an apprehended domestic violence order at the same time. A breach of that order is a separate criminal charge, which we cover in our note on contravening an AVO. Property damage in the home can also sit alongside other charges such as common assault, intimidation, or coercive control. The domestic violence context affects bail, the conditions imposed, and the way the matter is sentenced, so it needs to be handled with care from the first court date.

What are the defences to a property damage charge?

Accident is a full answer. If the damage was not intended and the accused did not foresee the risk of it, the fault element is missing and there is no offence. The Crown carries the burden of proving intention or recklessness, and of excluding an innocent explanation.

Claim of right is another. A person who honestly believed they had a legal right to deal with the property as they did is not guilty, even if the belief was wrong. A worker who dismantles a structure they honestly believe they are entitled to remove is one example. The belief must be genuine, but it does not have to be reasonable.

Self defence and defence of property can apply where the damage was done to protect a person or to stop a crime. The framework for that is in sections 418 to 423 of the Act, and we set it out in our note on self defence in NSW. Identity is a defence where the Crown cannot prove the accused was the person who caused the damage. And where the property was solely the accused's own, the charge cannot stand.

Mental health can be relevant too. Where a person was affected by a serious mental health impairment at the time, a diversion under the mental health provisions may be open in the Local Court. That is a question for careful assessment on the facts and the medical evidence.

How do courts sentence property damage?

The full range of sentencing options is available. For lower value damage and a person with little or no record, the court will often deal with the matter without a full time sentence. A charge can be dealt with by dismissal or a conditional release order without a conviction, which we explain in our notes on section 10 and conditional release orders. A fine and a community correction order are the next steps up. An intensive correction order allows a sentence of imprisonment to be served in the community under supervision.

The objective seriousness of the damage drives the sentence. The court weighs the value of what was damaged, whether it was planned, whether it was done in company or during a domestic incident, and the person's role. The aggravating and mitigating factors in section 21A of the Crimes (Sentencing Procedure) Act 1999 then apply, alongside the person's subjective case. We set out how those factors work in our note on section 21A.

A court can also order the person to pay compensation to the owner for the cost of the damage. An early plea of guilty attracts a discount of up to 25 per cent for its value to the system. Genuine remorse, repair or repayment before court, and steps to address the cause of the conduct all help the subjective case.

What we do for a person charged with property damage.

The first questions are bail and the domestic violence order, where there is one. Most property damage charges do not attract a refusal of bail, but where police impose conditions we test them and, if needed, apply to vary them. Our note on bail in NSW explains how the release argument runs.

Then comes the brief. In a property damage case the evidence usually turns on identity, ownership, and the state of mind. CCTV, photographs of the damage, repair quotes, and any account the accused gave police are the documents that matter. A gap in the identification, a genuine dispute over who owned the thing, or an account that points to accident rather than intent can change the outcome. Where the evidence is strong, the work turns to the plea, the value of the damage, and the sentence, with the aim of the lowest available penalty and, where it is open, no conviction. These are everyday charges, but they carry a criminal record, so they are worth defending properly.

Frequently asked.

What type of offence is malicious damage in NSW?

It is a criminal offence under section 195 of the Crimes Act 1900 (NSW). The old label malicious damage has been replaced by intentionally or recklessly destroying or damaging property. The base offence carries a maximum of 5 years, but it is usually finalised in the Local Court, where the ceiling is 2 years.

What is the section for damage to property in NSW?

Section 195 of the Crimes Act 1900 (NSW). It covers intentionally or recklessly destroying or damaging property that belongs to another person, or to the accused and another person. Related sections deal with fire, intent to injure, dishonest gain, and intent to endanger life.

Can you go to jail for damaging property in NSW?

Yes, imprisonment is available, but it is not the usual outcome for a first offence involving low value damage. Courts often deal with these matters by a fine, a conditional release order, or a community correction order. Full time custody is reserved for serious, repeated, or aggravated property damage.

Can you be charged with damaging your own property?

You cannot be guilty under section 195 for damaging property that is solely your own. You can be guilty if the property belongs to you and another person. Punching a hole in the wall of a jointly owned home, or smashing shared household items, can be charged even though you part own the thing you damaged.

What is the punishment for vandalism in Australia?

Vandalism is not a separate offence in New South Wales. Graffiti, smashing, and other property damage are charged under section 195 of the Crimes Act 1900, or as a graffiti offence under the Graffiti Control Act 2008. The penalty depends on the value of the damage, the way it was done, and the person's record.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 11 July 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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