What is Wilful Damage in Queensland?

In Queensland, wilful damage is the intentional unlawful damage of property not belonging to the individual and is punishable by law.

In this article, your rights and possible charges regarding the offence of wilful damage will be outlined.

The offence is governed under section 469 of the Criminal Code Act 1899.

What the Law Says about Wilful Damage

Section 469 of the Criminal Code details wilful damage as:

1. Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence which, unless otherwise stated, is a misdemeanour, and the person is liable if no other punishment is provided, to imprisonment for 5 years.
2. For this section, other than punishment in special cases, clause 11, the destruction or damage of property that is a thing mentioned in section 566 (11) is presumed to be done without the owner’s consent until the contrary is proved.
3. For this section, punishment in special cases, clause 11, the destruction or damage of property is, until the contrary is proved, presumed to be done—
(a) without the owner’s consent; and
(b) if the property is fixed in a cemetery or at a crematorium—
(i) without the lawful consent of the entity (if any) responsible for managing and administering the cemetery or crematorium; and
(ii) not in the reasonable belief that lawful consent mentioned              
in subparagraph (i) has been given.

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What the Prosecution must Prove for Wilful Damage

In order for a court to rightfully prosecute an individual for the crime of wilful damage, the prosecution must prove:

• Consent was not provided by the owner of the damaged property
• The individual is a human being capable of being charged.
• The accused damaged the property unlawfully
• The damage was done intentionally and by free will

Defences for Wilful Damage

Wilful Damage may be defendable in situations such as:

• There was no intention to damage property
• The owner actively consented to the damage taking place
• The accused damaged said property in the situation of emergency
• The accused was forced by another to cause damage.

Penalty

Wilful damage is considered the lowest form of property damage and, if found guilty, will generally come with a punishment of:

1. Maximum 5 years imprisonment
2. Fines
3. Community service

The court is also likely to insist the individual repays the victim for any repair or replacement costs they may be entitled to.

However, a range of factors may contribute to the sentence being increased. These factors consist of specific items that, when wilfully damaged, may have greater impacts than others. These include:

1. Aircrafts
2. Trains or railways
3. Cemetery or memorial area
4. An area of religious significance
5. Damage was done to any property by means of explosion
6. A will or official document

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Wilful Damage – Consent

According to section 348 of the Criminal Code Act 1899 consent is:

Consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.

It further goes on to describe when consent is involuntarily given, stating:

A person’s consent to an act is not freely and voluntarily given if it is obtained—
(a) by force; or
(b) by threat or intimidation; or
(c) by fear of bodily harm; or
(d) by the exercise of authority; or
(e) by false and fraudulent representations about the nature or purpose of the act; or
(f) by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.

A person is not to be taken to give consent to an action only because the person does not, before or at the time the act is done, say or do anything to communicate that the person does not consent to the act.

If an act is done or continues after consent to the act is withdrawn by words or conduct, then the act is done or continues without consent.”

Duress

The defence of duress, as established by section 31 of the Criminal Code Act 1899, is a viable argument for a large majority of crimes.

It states that in theory, if an individual is led to believe that they must commit an act under threat of harm to themselves, others, or their property they may be excused in court for said act.

It further states that if one is ordered to commit an act by an authority figure, unless it is inherently unlawful, they may also be considered not criminally responsible.

The legislation clearly states in the aforementioned section that:

A person is not criminally responsible for an act or omission if the person does or omits to do the act under any of the following circumstances, that is to say—

1. in the execution of the law;
2. in obedience to the order of a competent authority which he or she is bound by law to obey unless the order is manifestly unlawful;
3. when the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person or another person in the person’s presence;
4. when—
5. the person does or omits to do the act in order to save himself or herself or another person, or his or her property or the property of another person, from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat; and
6. the person doing the act or making the omission reasonably believes he or she or the other person is unable otherwise to escape the carrying out of the threat; and
7. doing the act or making the omission is reasonably proportionate to the harm or detriment threatened.

Key Takeaways

Wilful damage is a criminal offence, so it is important you are aware of the elements and liabilities associated with it.

If you are found convicted in front of a court, it will likely appear on your criminal record, so it is important you seek legal advice if accused.

Be referred to the best criminal lawyers on the Sunshine Coast