Smashing a window is clearly property damage—but shutting down a machine without touching it may not be. Australia’s High Court has drawn a surprising line. Here’s what actually counts as criminal damage in NSW.
Smashing a window, spray-painting a wall, slashing a tyre—most people would call all of these property damage without a second thought. But NSW criminal law is more particular than everyday language, and the line between what is and is not “damage” can be surprisingly fine. In fact, Australia’s highest court has confirmed that making a machine completely unusable—even shutting down major industrial equipment for hours—does not necessarily amount to criminal damage. This article explains where the law draws that line, and why it matters.
The core offence is found in section 195 of the Crimes Act 1900 (NSW): a person who intentionally or recklessly destroys or damages property belonging to another (or to another and the offender jointly) commits an offence. In its basic form it carries a maximum penalty of five years’ imprisonment, with higher maximums where the damage is caused by fire or explosives, or is done with intent to injure a person.
Curiously, although this is one of the most commonly prosecuted offences in the state, the Crimes Act does not actually define the word “damage.” That silence left it to the courts to work out what the term means—and the answer is not what many people expect.
The definitive Australian authority is the High Court’s decision in Grajewski v Director of Public Prosecutions (NSW) [2019] HCA 8. The case grew out of a protest at the Carrington Coal Terminal in Newcastle in 2016. A protester climbed onto a large machine used to load coal onto ships, then used a harness and rope to secure himself to it. For safety reasons the operator shut the machine down, and it remained out of action for around two hours until police rescue removed him.
The machine itself was never touched in any damaging way. Nothing was broken, bent or altered. But because it could not be operated while the protester was attached, he was charged with damaging property under section 195, on the basis that he had temporarily impaired the working machinery. He was convicted in the Local Court, and lost his first appeals.
By majority, the High Court disagreed and quashed the conviction. It held that for property to be “damaged” within the meaning of section 195, there must be some alteration to the physical integrity of the property—even if that alteration is only temporary. Interfering with how property is used, without physically affecting the thing itself, is not enough.
On the facts, the protester’s presence had not changed the ship loader physically in any way. The machine stopped because of a safety decision in the control room, not because anything about the machine had been altered. That distinction—between physically changing property and merely preventing its use—now sits at the heart of property damage law in NSW.
Importantly, damage does not have to be permanent. A temporary or easily-reversed physical change can still be enough. Conduct that has been treated as criminal damage includes:
The common thread, after Grajewski, is a physical effect on the object itself. Merely blocking access to property, or obstructing its use without altering it, may fall outside the offence. That nuance has become especially significant in protest cases where activists attach themselves to infrastructure or equipment—but it applies equally to everyday disputes.
People often think of property damage as broken windows or vandalised cars, but the Crimes Act defines property very broadly. It extends well beyond buildings and vehicles to include personal belongings, money, documents and other tangible things. The wide definition means the offence can arise in many situations beyond classic vandalism.
How serious a property damage charge is treated often depends on the value of the damage. Although the maximum penalty under section 195 is five years’ imprisonment, most matters are dealt with in the Local Court, where sentencing limits are lower—generally up to two years’ imprisonment for a single offence, along with the possibility of a fine. Where the value of the damage is higher, either the prosecution or the accused may be able to have the matter dealt with in the District Court, where the higher maximum is available. Damage caused by fire, or with intent to injure, is treated more seriously again.
To secure a conviction under section 195, the prosecution must prove beyond reasonable doubt that:
That last element—ownership—can be more complicated than it sounds, particularly in domestic settings.
A little-known feature of the law is that a person can sometimes be charged with damaging property they originally bought themselves. What matters is who legally owned the item at the time. This frequently arises after a relationship breakdown, where one partner destroys household items such as a television or furniture during an argument.
The reason is a legal principle known as the “presumption of advancement.” Where one partner voluntarily gives property to the other, the law may presume it was intended as a gift—meaning ownership passed to the other person. So destroying an item during a domestic dispute can still amount to criminal damage even where the accused insists, “But I paid for it.” The court looks at the surrounding circumstances to decide who actually owned the property.
Property damage charges sit at the intersection of protest, domestic disputes and everyday criminal law, and they are among the most frequently laid charges in NSW. As Grajewski shows, whether particular conduct crosses the line into a criminal offence can turn on a fine distinction—between physically altering property and simply stopping someone from using it. That distinction can be the difference between a serious charge and no offence at all.
If you have been charged with destroying or damaging property, the details matter enormously—whether the property was physically altered, whether you acted intentionally or recklessly, and who actually owned it. Our experienced criminal lawyers can assess whether the prosecution can prove each element, whether a charge is open to challenge after Grajewski, and whether you may be eligible for a Section 10 non-conviction order. Contact NS Criminal Lawyers for a confidential discussion about your situation.
This article provides general information only and is not legal advice. The law referred to is current in New South Wales as at the date of publication. For advice about your circumstances, please contact a qualified criminal defence lawyer.
