Wilful damage in Queensland

Wilfully means more than carelessly

The prosecution must prove three things: that property belonging to another was destroyed or damaged, that you caused it, and that you did so wilfully. Wilfully means you either intended the damage or you foresaw it as a likely consequence and went ahead regardless. Careless or accidental damage is not wilful damage, however expensive the repair is.

Damage does not have to be permanent. Temporary impairment of usefulness or value is enough, which is why removing a security tag, gluing a lock, deflating tyres or painting over a sign all qualify.

Section 458 provides that damage to your own property is generally not an offence, but joint ownership complicates that. Damaging property owned jointly with a partner is still capable of being wilful damage, because it belongs in part to another person.

Graffiti is treated separately

Graffiti in a public place, or on property visible from a public place, is a special case under section 469 with a maximum of 7 years. It is also treated differently at sentence. Under section 108B of the Penalties and Sentences Act 1992 (Qld), a court sentencing an adult for a graffiti offence must make a community service order unless the offender is not capable of complying, and must state reasons if it does not.

Possessing a graffiti instrument is a separate summary offence under section 17 of the Summary Offences Act 2005 (Qld). Being found with markers or spray cans near a tagged wall commonly produces both charges.

Restitution decides the outcome

More than in almost any other charge, the repair invoice drives the sentence. A court can order restitution and compensation under sections 35 and 36 of the Penalties and Sentences Act 1992 (Qld), and it usually does.

Two practical points that change results:

1. Check the quote. Complainant estimates in wilful damage matters are frequently inflated, sometimes including betterment, an entire replacement rather than a repair, or work unrelated to the damage. You are entitled to dispute quantum, and a magistrate will not simply accept a figure that is challenged with evidence.
2. Pay it before the sentence date if you can. Damage already repaired, with a receipt, converts the sentence conversation from punishment to what remains to be achieved. It is the strongest single argument for no conviction being recorded under section 12.

Where the charge is defended

• Accident, section 23. Where the damage occurred as an event you did not intend, foresee, and an ordinary person would not reasonably foresee. Common where a door or window is broken during a struggle.
• Identification. Damage often occurs at night with no direct witness. Being nearby is not proof.
• Ownership and authority. Where you had authority to alter or remove the item, or reasonably believed you did, the unlawfulness element is in issue.
• Section 22 claim of right. Where the damage was incidental to retrieving property you honestly believed was yours.
• Quantum. Not a defence, but a $3,000 quote reduced to $600 changes the entire complexion of a sentence.

Wilful damage where the value is under $30,000 must be dealt with summarily under section 552BA, so a magistrate is capped at 3 years under section 552H.