7.5.4.3 – Criminal Damage With a View to Gain
7.5.4.3.1 – Bench Notes: Criminal Damage With a View
to Gain1
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 Bench Notes:

Criminal damage (s197(1));

Criminal damage intending to endanger life (s197(2));

Arson (s197(6));

Arson causing death (s197A);

Intentionally or recklessly causing a bushfire (s201A).
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)).
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This document was last updated on 1 October 2011.
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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 Bench Notes: 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:

Determine whether the accused had the knowledge, belief or
intent which is said to make his or her actions dishonest; and

Determine whether, based on that knowledge, belief or intent,
the act was dishonest (Peters v R (1998) 192 CLR 493; Macleod
v R (2003) 214 CLR 230).
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:

Explain which facts it is alleged make the accused’s behaviour
dishonest; and

Direct the jury that this element will be met if they find those
facts to be proven (Peters v R (1998) 192 CLR 493; Macleod v R
(2003) 214 CLR 230 per Callinan J).
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).
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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).
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