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7.5.18 - Criminal Damage With a View to Gain

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Overview

  1. Criminal damage with a view to gain is an offence under Crimes Act 1958 s197(3).
  2. A number of related but discrete offences have also been created by s197 and the surrounding provisions. These are addressed separately in the following topics:

    Elements

  3. The offence of criminal damage with a view to gain has the following three elements:
    1. The accused damaged or destroyed property;
    2. The accused did so dishonestly;
    3. The accused did so with a view to gain for himself or another (Crimes Act 1958 s197(3)).
  4. This offence is primarily aimed at preventing people from damaging or destroying property in order to make false insurance claims (DPP Reference (No 1 of 1988) [1989] VR 857).
  5. Consequently, unlike the offence of criminal damage under s197(1), the prosecution does not need to prove that the property belonged to another. This offence may be committed in relation to property belonging to the accused him or herself, or abandoned property (see DPP Reference (No 1 of 1988) [1989] VR 857).
  6. The lawful excuses contained in Crimes Act 1958 s201 are not available in relation to this offence (Crimes Act 1958 s201(1)).

    Destroying or Damaging Property

  7. The first element the prosecution must prove is that the accused destroyed or damaged property (Crimes Act 1958 s197(3)).
  8. For information concerning this element, see Criminal Damage.

    Dishonesty

  9. The second element the prosecution must prove is that the accused acted dishonestly (Crimes Act 1958 s197(3)).
  10. While the law is unclear, it is likely that dishonesty in s197(3) carries its ordinary meaning, rather than the special meaning that applies to offences such as theft or obtaining property by deception.
  11. To determine whether the accused acted dishonestly, the jury must:
  12. The jury must determine whether the act was dishonest according to the standards of ordinary, decent people (Peters v R (1998) 192 CLR 493; Macleod v R (2003) 214 CLR 230).
  13. It is only in borderline cases that the jury will need to determine whether the accused’s acts should be characterised as "dishonest". In most cases, it will be sufficient for the judge to:

    View to Gain

  14. The third element the prosecution must prove is that the accused acted with a view to gain for him or herself or another (Crimes Act 1958 s197(3)).
  15. The Act does not define the term "gain" for the purpose of this offence. This suggests that the word should be give a wide or general interpretation. It may not be limited to "financial advantage" or "profit". "Gain" does not need to be measured in "balance sheet" terms (DPP Reference (No 1 of 1988) [1989] VR 857).
  16. The jury must determine whether a view to gain existed at the time the accused damaged or destroyed the property. While it is not necessary for the prosecution to prove that the accused later committed acts in order to gain some kind of benefit from the damage or destruction (e.g., by lodging an insurance claim), evidence of later acts may help to establish this element.

    Alternative Offence

  17. The offence of criminal damage (s197(1)) is a statutory alternative to the offence of criminal damage with a view to gain (Crimes Act 1958 s427).

 

Last updated: 19 October 2011

In This Section

7.5.18.1 - Charge: Criminal Damage with a View to Gain

7.5.18.2 - Checklist: Criminal Damage with a View to Gain

See Also

7.5 - Dishonesty and Property Offences

7.5.1 - Theft

7.5.2 - Robbery

7.5.3 - Armed Robbery

7.5.4 - Burglary

7.5.5 - Aggravated Burglary

7.5.6 – Home Invasion

7.5.7 – Aggravated Home Invasion

7.5.8 – Carjacking

7.5.9 – Aggravated Carjacking

7.5.10 - Handling Stolen Goods

7.5.11 - Recent Possession

7.5.12 - Obtaining Property By Deception

7.5.13 - Obtaining a Financial Advantage By Deception

7.5.14 - Making or Using a False Document

7.5.15 - Blackmail

7.5.16 - Criminal Damage

7.5.17 - Criminal Damage Intending to Endanger Life

7.5.19 - Arson

7.5.20 - Arson Causing Death

7.5.21 - Intentionally or Recklessly Causing a Bushfire