Criminal damage — often called property damage — is one of the most commonly charged offences in Victoria, frequently arising alongside assault or family violence allegations. It is an offence under section 197 of the Crimes Act 1958. McMahon Criminal Defence Lawyers defends these charges at the Ballarat Magistrates’ Court and across Victoria on fixed fees.
What is Criminal Damage?
Under section 197 of the Crimes Act 1958, a person commits criminal damage if they intentionally or recklessly destroy or damage property belonging to another person, without lawful excuse. “Damage” is interpreted broadly and includes temporary or permanent harm to property, and even damage that can be cleaned or repaired. The offence covers everything from smashing a window or phone to graffiti and keying a car.
What the Prosecution Must Prove
- the accused destroyed or damaged property;
- the property belonged to another person;
- the accused acted intentionally or recklessly; and
- the accused had no lawful excuse.
Penalty
The maximum penalty for criminal damage is level 5 imprisonment (10 years), though most matters are heard summarily in the Magistrates’ Court and resolved well below the maximum. There are also more serious related offences, including arson (damage by fire) and damage with intent to endanger life, which carry higher penalties. Where the damage is minor and there is little or no prior history, outcomes such as diversion or a finding of guilt without conviction are often achievable.
Defending the Charge
- Lawful excuse — including an honest belief that you were entitled to deal with the property as you did, or that you were protecting other property;
- Not intentional or reckless — the damage was accidental;
- The property was your own (in whole), or no damage in law occurred;
- Identification or factual dispute; and
- Negotiated resolution, including restitution and diversion.
If you have been charged with criminal damage, contact us for advice. Where the charge accompanies a family violence allegation, see our family violence and intervention order pages. See also our main theft and dishonesty offences page.
Frequently Asked Questions
What is the maximum penalty for criminal damage in Victoria?
The maximum is 10 years’ imprisonment (level 5) under section 197 of the Crimes Act 1958. In practice most criminal damage matters are heard in the Magistrates’ Court and resolved well below the maximum, often by fine, bond, or without conviction.
Is criminal damage the same as property damage?
Yes. ‘Property damage’ is the everyday term for the offence formally known as criminal damage under section 197 of the Crimes Act 1958. They refer to the same charge.
Can I get diversion for criminal damage?
Often, yes, particularly for minor damage where you have little or no prior history and are willing to make restitution. Diversion resolves the charge without any finding of guilt, subject to prosecution consent and the matter being appropriate.
What if I damaged my own property?
Criminal damage requires that the property belonged to another person. If the property was entirely your own, the offence is generally not made out — though complications can arise with jointly owned property, which is why advice on your specific facts is important.
Is accidental damage a defence?
Yes. The prosecution must prove you acted intentionally or recklessly. If the damage was genuinely accidental — and you were not reckless as to causing it — that is a defence. A lawful excuse, such as an honest claim of right, can also be a defence.
Get Expert Legal Advice — Fixed Fees, No Surprises
McMahon Criminal Defence Lawyers provides experienced, fixed-fee representation for this charge and all criminal matters, appearing at the Ballarat Magistrates’ Court and across Victoria. Contact us for a free, confidential initial consultation.
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