Causing damage to government property is a criminal offence that could result in a substantial 10-year prison sentence if you are found guilty. If you’ve been accused of damaging Commonwealth property, it’s crucial to promptly seek legal advice from a proficient criminal law team. Jackson John Defence Lawyers specializes in Commonwealth offences and can provide you with expert assistance to mount a strong legal defense.
The Law
Section 132.8A of the Criminal Code Act 1995 (Cth) states:
(1) A person commits an offence if:
Understanding the Law
Under the legislation, ‘Property’ includes but is not limited to all real property, personal property and money. A ‘Commonwealth entity’ is understood to refer to any agency, department, office or other organisation or body created under Commonwealth legislation. Here, the Prosecution does not have to prove that you knew the property belonged to a Commonwealth entity.
What Must Be Proven?
For the Prosecution to be successful, they must be able to prove each of the below elements beyond a reasonable doubt:
What are the Types of Penalties?
The maximum penalty for the offence causing damage to government property is 10 years imprisonment.
This offence includes a wide spectrum of offending conduct. As such, the type of penalties varies greatly. The Court may consider sentencing you to one or more of the following:
A section 19B bond is a finding of guilt, but the Court does not record a conviction. A bond such as this is usually only given where you have a clear criminal history, your offending behaviour is minor, there is little chance of you offending again, and there were mitigating factors that led to the offending. Even if these facts apply to your case, there is no guarantee you will get this type of penalty. However, cogent subjective material and robust submissions on your behalf can be very persuasive to the Court.
There are two types of non-conviction orders under section 19B, namely non-conviction discharge with no conditions and non-conviction discharge with convictions. The conditions which may be imposed are:
The Court can impose the above conditions with or without a recognisance release order, which is a requirement that you will be discharged with no conviction upon giving the Court a sum of money to satisfy the Court that you will comply with the conditions imposed upon you for the duration of the order. If you comply, the sum of money will be returned to you. If not, the money can be forfeited to the Commonwealth.
A CRO is where the Court will convict you but release you without passing sentence so long as you enter a recognisance. This means that you will give the Court a sum of money as a promise to comply with certain conditions. The maximum term of the CRO is five years and may involve conditions such as to be of good behaviour, undertake or participate in rehabilitation or counselling (which cannot exceed two years). You will be subject to supervision by a parole officer and must comply with all reasonable directions of that person. You will not be allowed to travel overseas or interstate without the parole officer’s written permission. If you breach a CRO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
An RRO involves the Court sentencing you to a period of imprisonment but suspending in the following circumstances:
There is no maximum term for an RRO and it may involve conditions such as to be of good behaviour (not exceeding five years), undertake or participate in rehabilitation or counselling (which cannot exceed two years). You will be subject to supervision by a parole officer and must comply with all reasonable directions of that person (which cannot exceed two years). You will not be allowed to travel overseas or interstate without the parole officer’s written permission. If you breach an RRO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
If the total term of the sentence is greater than three years, the Court must specify a non-parole period, which is the minimum time you must spend in gaol.
A CCO is another type of sentence which allows you to remain in the community, but you are supervised by Community Corrections. It typically involves more onerous conditions than a CRO and you will receive a conviction, such as community service work, curfew, and place restrictions. The maximum term for a CCO is three years. If you breach a CCO, you will be brought before the Court that sentenced you and potentially be re-sentenced to a more serious penalty.
If the Court is satisfied that imprisonment is warranted, it can order that you serve the term of imprisonment in the community while subject to the supervision of Community Corrections and conditions such as home detention (must not exceed 18 months), electronic monitoring, community service, curfew, or rehabilitation. If you breach an ICO, the Court can re-sentence you to a period of full-time custody.
An ICO cannot be imposed in the following circumstances:
The Court can order you to pay a sum of money for any loss incurred by the victim with respect to the offending. This can be made in addition to any other sentencing option.
This offence carries a maximum imprisonment of 10 years imprisonment. If the term is less than three years, the Court cannot impose a non-parole period. Instead, the Court will impose an RRO. The benefit of this is that the Parole Board will not be involved and cannot typically refuse your release.
If the term of imprisonment ordered by the Court is more than three years, the Court must impose a non-parole period (the minimum time you must spend in gaol). In State offences, the non-parole period is usually about 75% of the overall sentence. As with State matters, however, this period can be significantly reduced with impactful submissions on your behalf highlighting good prospects of rehabilitation in addition to other subjective circumstances. Usually, the non-parole periods for Commonwealth offences sit at about 60% of the overall sentence.
Unlike State offences, the Attorney-General will conduct its own assessment of whether you are to be released. The Attorney-General will consider any written material submitted on your behalf and the decision will be based upon an evaluation of the following matters:
Potential Defences
In any criminal case, it is the Prosecution’s duty to establish every element of the offence beyond a reasonable doubt. If you find yourself facing charges related to property destruction or damage, your potential defences will largely depend on the unique circumstances of your case.
To explore the best legal strategies and defences available to you, it’s crucial to consult with the experienced criminal lawyers at Jackson John Defence Lawyers. We can provide you with the guidance and expertise necessary to navigate your legal situation effectively.
The law states that:
and the conduct is a reasonable response in the circumstances as he or she perceives them.
Once self-defence is raised, the onus lies with the Prosecution to negative self-defence beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in self-defence. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Duress involves circumstances where you have been forced to commit a crime against your will, whether it be by way of threat, intimidation, or some other form of coercion. The threat must be so serious that it would have caused an ordinary person of like firmness in your situation to act in the same way. Furthermore, the threat must be the operative cause of your actions. In other words, if you are not worried about the threat at the time of the commission of the offence, or some other factor influences your decision to commit the crime, duress may not be established. Finally, the threat must be continuing. What this means is that if there is an opportunity at some point for you to obviate the threat, by reporting it to the police for example, duress may not be accepted.
Once duress is raised, the onus lies with the Prosecution to negative duress beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in duress. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
For necessity to be established, the following must exist at the time of the commission of the offence:
As is the case with self-defence, the onus lies with the Prosecution to negative necessity beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting out of necessity. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Claim of right is a legal defence for offences involving the acquisition of property. In its broadest sense, it operates as a defence when someone appropriates property in a manner that would usually constitute an offence. However, it applies when, at that moment, the individual genuinely believed they had a legitimate proprietary or possessory (i.e., legal) right to the property, even if that belief turns out to be mistaken.
In the case of R v Fuge, the Court clarified what a defendant must raise in order to be successful in their claim of right defence:
Why Jackson John?
When facing an offence related to property damage or any other criminal charges, it’s crucial to have experienced legal representation by your side. Jackson John Defence Lawyers offer a wealth of expertise and a track record of success in handling complex cases. Our commitment to protecting your rights and their deep understanding of the law make them the ideal choice for navigating the intricacies of your legal situation. Choosing Jackson John Defence Lawyers means selecting a strong and dedicated advocate to help you achieve the best possible outcome.
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We pay our respect to their Elders past and present and extend that respect to all Aboriginal and Torres Strait Islander Peoples today.
© 2024 JACKSON JOHN DEFENCE LAWYERS – Privacy Policy
Liability limited by a scheme approved under Professional Standards Legislation.
In the spirit of reconciliation, Jackson John Defence Lawyers acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea and community. We pay our respect to their Elders past and present and extend that respect to all Aboriginal and Torres Strait Islander Peoples today.
