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  • Does wilful Damage show up on a police check?

    Any offence where the Court gives a sentencing results in a Criminal record for the offender. In many situations, the Police Check is an essential document in assessing a candidate, as it reveals the Disclosable Court Outcomes (DCOs) in their criminal records.

    The offences shown in a Police Check does not distinguish whether an offence is minor or indictable. Insofar as the Court deems it necessary to issue a sentence, it will be recorded in their criminal records.

    There are a lot of offences a person can commit against another person or the state.

    The legislation prohibiting these acts are primarily found in the Crimes Acts or Criminal Codes of the various States and Territories of Australia.

    What is the offence of Wilful Damage?

    A person is guilty of wilful Damage if they have acted in a way that caused Damage or destruction to another property. It may also be the case where a person misuses a borrowed/shared item such that it is “useless” to another person.

    Such property may either be that of another person or property of the state. A person can be guilty of wilful Damage even though the action came about by recklessness.

    Damaging a person's property with intent can be a criminal offence in Australia, and depending on the factors around the offence, it can incur severe penalties.

    Wilful Damage under the law for various States and Territories

    Section 469(1) of the Criminal Code Act 1899 (QLD);

    Section 195(a) of the Crimes Act 1900 (NSW);

    Section 444 of the Criminal Code Act Compilation Act 1913 (WA);

    Sections 15(1) and (37) of the Criminal Code Act 1924 (Tas);

    Section 197(1) of the Crimes Act 1958 (VIC);

    Section 116(3) and 403 of the Crimes Act 1900 (ACT);

    Section 85 of the Criminal Law Consolidation Act 1935 (SA);

    Condemns the unlawful act of wilful Damage by stipulating punishments between 5 years and life imprisonment depending on the offence (varies based on the jurisdiction). It also allows the Court to include further penalties for such offences depending on the circumstances around the offence.

    Will a wilful damage offence show up on a Police Check?

    If the Court finds the defendant guilty of the charge, it will appear on the Police Check.

    However, the defendant can avoid a sentence if the Court grants their applications for special programs. The offence for wilful Damage will not show up on the Police Check if the Court commits them for other programs instead of a conviction.

    What punishments does the law stipulate for offences of wilful Damage?

    The Court can handle the matter based on relevant factors to the case. The Court may issue another form of less severe penalties and compensation for minor offences.

    For example; in a minor case, the Court may order the defendant to fix the Damage and pay some fines to the Court. The Court can also order the offender to pay compensation to the owner of the goods/products.

    Can reckless actions constitute a Wilful Damage offence?

    Typically, the offence of wilful Damage is interpreted as a deliberate act of the offender to "disfigure" a shared or another property. However, you can also be guilty of an offence of “wilful damage” if you acted recklessly towards the property.

    For the offence of Wilful Damage, the prosecutor only needs to prove that you were aware of the presence or the "fragility" of such item/property. Therefore, arguing that it was a reckless act may not be a defence in Court.

    What is the difference between a deliberate and a reckless act of Wilful Damage?

    An example of a deliberate act of wilful Damage is throwing an object at a vehicle and shattering the windscreen. In this case, the offender actively and intentionally wanted to "disfigure" or damage parts of the vehicle.

    An example of a reckless act is skidding in a mall and slamming against and breaking a glass door. In this case, the offender did not mean to but showed high disregard for the "fragility" of that piece.

    What must the prosecutor prove to establish a wilful damage offence?

    The Court will assess all evidence and witnesses presented during the court proceedings before issuing a sentence. To establish a case of wilful Damage, the prosecutor must prove that;

    • The property that was destroyed/disfigured belonged to somebody else, or was a shared property,
    • The action was intentions and illegal,
    • You had no form of control overuse or disposing of such items.

    The prosecutor must prove that there was no legal reason that justifies the act or permits such offence. It should be clear that the act may not be an offence of wilful Damage if a legal order or backing was enforcing such an act.

    Also, it is not willful Damage if such property was damaged in the course of justice or legal order.

    Special cases of Wilful Damage

    The offences of wilful Damage are very broad; depending on the circumstances, they can be;

    However, depending on the State/Jurisdiction and the severity of the offence, these special cases of wilful Damage may attract penalties up to life imprisonment. The below special cases are listed under Queensland (QLD) legislation but are similar to other jurisdictions;

    • Damaging or Destroying a property through the use of explosives attracts penalties up to life imprisonment.
    • Destroying seawalls attracts a penalty up to life imprisonment,
    • Damaging a property in a cemetery or crematorium carries a maximum sentence of 7 years imprisonment,
    • Destroying properties of an educational institution will attract a penalty of up to 7 years imprisonment,
    • Disfiguring a place with graffiti will incur penalties of up to 7-year imprisonment,
    • Destroying or altering an official document (titles, deeds, etc.) will incur penalties up to 7 years,
    • Damaging wills or other testaments can attract a penalty term of up to 14 years imprisonment term,
    • Causing significant damage to an aeroplane or a railway vehicle will attract penalties of up to 14 years imprisonment,
    • Damaging a vessel or a wreck can incur up to a 7 years imprisonment term,
    • Damaging other properties of special value like (Lighting beacon, water bore, agric machinery) can incur penalties of up to 7 years imprisonment.

    All these special cases of wilful damage offences are settled on indictment in a District or Supreme court.

    What other offences show up in a Police Check?

    The Police Check certificate reveals all the Disclosable Court Outcomes of a person’s criminal records. All convictions in your criminal records will appear on a Police check certificate unless special legislation prevents it.

    What is a DCO?

    All information that can and will be revealed on a Police Check forms the Disclosable Court Outcomes (DCOs). An applicant’s DCOs will show the following details on their Police Check;

    What happens if I do not have a DCO?

    If there is no disclosable conviction in your Criminal record, your Police Check will return with a No Disclosable Court Outcome (NDCO). Having an NDCO on your criminal history check may mean that you have a clean criminal record; or it may mean any other records cannot be disclosed in the Police Check certificate as they may not be relevant to the purpose of the check, or may have been classified as a spent conviction.

    What are spent offences?

    The scheme allows eligible offences to be wiped off an individual’s criminal record once they satisfy the prescribed criteria. The offender must observe a Good Behaviour period from the period of their conviction before their offences can be spent.

    The spent convictions scheme is primarily for minor offences that had little impact on the victim or the state. Indictable offences like murder, rape, Armed robbery cannot be “spent."

    The conditions for a Spent conviction is;

    • The offence must not have incurred a penalty of an imprisonment term greater than 30 months,
    • The crime-free period has elapsed without the person re-offending or getting another conviction.
    • The conviction was not for sexual related or child abuse offences.

    Crime Free Period under the Spent Convictions Scheme

    This is a period of "Good Behaviour" of the offender. They must not get another conviction during this period unless the period restarts.

    • Ten years period for convictions given as an adult or by an Adult Court;
    • Five years period for convictions given as a juvenile or by a Youth Court.

    Is a Wilful Damage offence eligible to be spent?

    If the Damage was a minor one, or the Court does not issue up to a 30 months imprisonment term as a penalty, it may become spent after the offender observes the crime-free period.

    However, those "special types" of wilful Damage or those offences that attract a severe imprisonment term cannot become spent. For example, wilful damage involving explosives to destroy property and a resulting imprisonment term of greater than 30 months cannot be spent under the law.

    What offences do not show in my Police Check?

    • Overseas convictions/records (where an Australian court was not involved),
    • Infringement notices,
    • Matters settled outside an Australian Court/legislation,
    • Offences against an organization or group that does not interfere with Australian laws,
    • Police cautions or orders.
    • Restriction or Intervention Orders.

    How long will a conviction of wilful Damage remain on your criminal records?

    Convictions in a criminal record usually last a long time unless certain legal programs like the Spent Convictions Scheme erase such offences.

    Usually, a criminal offence will remain on your adult record for ten years before any legal program can apply. However, severer records will stay on the Australian Criminal database for life.

    How can I obtain national police checks?

    Individuals

    If you are an individual, you can obtain a national criminal record check certificate online via Australian National Character Check’s police check application form. The results are dispatched via email.

    Business and Enterprise Customers

    Business and Enterprise customers are able to sign up to ANCC’s business portal where they can order, manage, track and view candidates’ criminal history check results on their business portal. Organisations will undergo a process for approval prior to being granted access to ANCC’s business portal.

    ANCC sends an invite to the applicant to complete their criminal record check online and handles the application and informed consent form. Contact ANCC’s business and enterprise partnerships team today to enquire about setting up a business portal for your organisation.

    Sources

    Section 469(1) of the Criminal Code Act 1899 (QLD) - https://www.legislation.qld.gov.au/view/html/inforce/current/act-1899-009

    Section 195(a) of the Crimes Act 1900 (NSW) - https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040

    Section 444 of the Criminal Code Act Compilation Act 1913 (WA) - https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_218_homepage.html

    Sections 15(1) and (37) of the Criminal Code Act 1924 (Tas) - https://www.legislation.tas.gov.au/view/html/inforce/current/act-1924-069

    Section 197(1) of the Crimes Act 1958 (VIC) - https://www.legislation.vic.gov.au/in-force/acts/crimes-act-1958/294

    Sections 116(3) and 403 of the Crimes Act 1900 (ACT) - https://www.legislation.act.gov.au/a/1900-40

    Section 85 of the Criminal Law Consolidation Act 1935 (SA) - https://www.legislation.sa.gov.au/LZ/C/A/CRIMINAL%20LAW%20CONSOLIDATION%20ACT%201935.aspx

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