Introduction and Statistics
The Police Service Area for Moorabbin includes Aspendale, Mordialloc, Cheltenham, Carrum and Chelsea in its division. Recently, studies have shown an increase in reported property damage claims to Victoria Police by residents in the Moorabbin area.
In Moorabbin, vandalism and graffiti have increased by 6.8% in the last year. There were also over 1000 recorded thefts from motor vehicles which included damage to windows and locks. In the year 2013/14 there were over 900 recorded instances of property damage, as well as 594 residential burglaries recorded – an increase of nearly 24% from the previous year.
Statistics gathered by Victoria Police indicate that robberies and crimes against the person have decreased in the Moorabbin area over the past year, yet crimes against property – criminal damage, vandalism, graffiti – have increased.
If you live near the Moorabbin area and have been charged with criminal damage to property, or with vandalism or graffiti, you should seek professional legal assistance as soon as possible. Dribbin & Brown Criminal Lawyers have offices across Melbourne’s Southeast suburbs, with offices located in Moorabbin, situated conveniently within walking distance of the Moorabbin Magistrates’ Court. It is important that you contact one of our expert criminal solicitors as soon as possible. Even if you have not yet been charged, but may be charged in the future, you can contact one of our lawyers for advice today. They may help you avoid a court appearance where possible, and give you the best representation if a court appearance cannot be avoided.
Under s 197 of the Crimes Act 1958 (Vic), it is an indictable offence to intentionally destroy or damage property belonging to another. It does not matter if you also own the item. If someone has an interest in the property, and you destroy or damage it, you are criminally liable. The crime can also extend to intentional damage with an intent to endanger the life of another. Section 197 also makes it a crime to dishonestly destroy or damage property with a view to gain for oneself. This might occur, for example, if an accused has been charged with damaging their own property with a view to benefit from an insurance claim.
It is an indictable offence to wilfully damage or destroy property. The penalties for these offences range from 5-10 years maximum imprisonment. Being charged with criminal damage is a serious matter, and it is important that you contact an experienced criminal lawyer to raise your defence, should you be charged with criminal damage.
Because a charge under s 197 is an indictable offence, the prosecution must prove that all the elements are satisfied beyond reasonable doubt. If the prosecution fails to prove the accused has satisfied all the elements of the offence, under sub sections (1), (2) or (3) of section 197, there can be no finding of guilt.
As such, an experience criminal lawyer can help you raise a defence in your matter, in certain circumstances. The alleged offence must have occurred at the time and place, and on the date it was claimed to have taken place.
Evidence must show that it was the accused who was involved in the property damage, and not someone else. This turns on matters of evidence and what can and cannot be used as evidence in court. A professional solicitor can help ensure you are not convicted for something you have not done, and may do so by drawing on inaccurate or erroneous evidence.
Regarding section 197 subsections (1) and (2), the prosecution must also prove the accused had damaged or destroyed the property “intentionally”. That is, that the accused had the intention to destroy or damage the property, or that the accused believed that his or her actions would likely result in destruction or damage of the property (see section 197(4) of the Crimes Act). This can be a difficult element to prove as a person’s intentions may not always be clear based on objective standards. There may be circumstances in which a person’s mental state was affected, by drugs, alcohol or psychiatric illness. This is a difficult area of law, and you should seek a lawyer’s expert advice on the matter.
Regarding section 197 subsection (3), the prosecution must show that the accused acted “dishonestly”. This is judged against the standard of ‘ordinary, decent people’ (see R v Salvo, R v Bonollo and R v Brow for leading case law in Victoria on this matter). Dishonesty is often clear where a reasonable person would believe they can gain from damaging or destroying property. As an example, setting fire to a building to claim the insurance money might make a person liable under section 197(3).
As mentioned earlier, property belonging to another includes property that the accused owns, but one in which a victim may also have a proprietary interest. It is not a defence to say, for example, an accused destroyed a television belonging to him or her, when the television also belonged to a partner or spouse. In other cases, especially of vandalism and graffiti, the property often belongs to another, perhaps unknown person, and so damage to that property is damage to property belonging to another.
If you have been charged with criminal damage to property, or with vandalism or graffiti, there may be further defences an expert criminal lawyer can raise on your behalf. Further, if the lawyer does not believe you can escape conviction, they may be able to enter a plea of guilty in exchange for a reduced penalty. If you live in the Moorabbin area, or have been summoned to the Moorabbin Magistrates’ Court on a charge under section 197, you should contact an expert criminal lawyer immediately. The sooner you discuss your matter with one of our lawyers, the better your chances of receiving a favourable outcome.