– section 9 of the Summary Offences Act 1966
This charge is generally laid in situations where a person destroys, damages, pollutes or obstructs any damage or property of another.
Examples of Wilful Damage
- You pollute a fountain in a public park.
- You damage your friend’s car (which is worth under $5,000)
Questions in cases like this
- Did you destroy or damage or pollute property?
- Did you trespass on a place?
What are some of the possible defences to Wilful Damage?
Defences to this could be that there was lack of intent, a factual dispute or lawful purpose.
You should ring us and discuss your case if you have been charged. Deciding on whether to plead guilty or not has important implications for you and should be made after proper discussions with a criminal lawyer.
Maximum penalty and court that deals with this charge
There is a maximum penalty of 25 penalty units or imprisonment for six months for this offence. Wilful damage is the sort of offence regularly heard in the Magistrates’ Court.
What is the legal definition of Wilful Damage?
- Any person who—
- destroys damages pollutes or obstructs any aqueduct dam sluice pipe pump waterway pond pool or fountain;
- being an artificer workman journeyman or apprentice wilfully damages spoils or destroys any goods wares work or material committed to his care or charge;
- wilfully injures or damages any property (whether private or public) the injury done being under the value of $5000; or
- wilfully trespasses in any public place other than a Scheduled public place and neglects or refuses to leave that place after being warned to do so by the owner occupier or a person authorised by or on behalf of the owner or occupier; or
- without express or implied authority given by the owner or occupier or given on behalf of the owner or occupier by a person authorised to give it or without any other lawful excuse, wilfully enters any private place or Scheduled public place, unless for a legitimate purpose; or
- neglects or refuses to leave a private place or Scheduled public place after being warned to do so by the owner or occupier or a person authorised to give that warning on behalf of the owner or occupier, unless the person has a lawful excuse; or
- without lawful excuse, enters any place (whether private or public) in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace—
shall be guilty of an offence.
The legislation for this offence can be found on section 9 of Summary Offences Act 1966.
Elements of the offence
In essence to prove this charge the Police must show that the accused destroyed or damaged the property of a public place or belonging to another person without lawful excuse as listed in the subsections of the legislation.
“Can they prove you damaged someone’s property?”
Sentencing in the Magistrates’ Courts
From 1 July 2013 to 30 June 2016, the Magistrates’ Courts of Victoria heard a total of 50 cases (52 charges) of Wilfully Damage, Injure or Trespass on Property (not further defined). Majority of these cases led to imprisonment (36%). Other sentencing penalties imposed were adjourned undertaking/discharge/dismissal (28%), fine (22%), Community Correction Order (12%), and wholly suspended sentence (2%).
Of the cases that resulted in imprisonment, majority were sentenced to a term that was less than 3 months (61.1%). The longest term imposed was between 6 and 12 months (22.2%).
Of the charges that led to fines, the highest amount imposed was between $1,000 and $2,000 (25% for aggregate). But the majority fell under the “$500 < $1,000” category (41.7% for aggregate) and “less than $500” category (16.7% for non-aggregate).
Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.1
Case studies related to Wilful Damage
- Criminal Damage and Wilful Damage – Diversion
- Diversion for Assault and Wilful Damage
- Road Rage – No Licence Suspension Imposed
- Family Violence – Good Behaviour Bond Without Conviction
- Appeal Against Sentence – Success, No Conviction
 Sentencing Advisory Council. “SAC Statistics – Summary Offences Act 1966 (Vic) : s 9 – wilfully damage, injure or trespass on property (not further defined).” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/7405_9.html (accessed January 14, 2019).