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      mosque property damage

      Over $100,000 in Damage to Mosque – The Law, Defences and Penalties for Destroy or Damage Property

      A young man has been arrested after entering a mosque and committing property damage worth over $100,000.

      20-year-old Kaiwan Zeabari was arrested after allegedly going on a rampage at Sydney’s Auburn Gallipoli Mosque on the evening of 1 November 2020.

      The incident has led to widespread condemnation as well as finger-pointing as to whether there was any racial or political motivation for the attack.

      Mr Zeabari’s family took to social media recently to provide clarification and an explanation for the incident.

      Charged with Destroy or Damage Property

      Members of Sydney’s Turkish community have been left reeling after a

      Mr Zeabari is alleged to have entered the western Sydney mosque before smashing various items including windows, fixtures and antique chandeliers.

      Police estimate the cost of the property damage to be in the vicinity of $100,000, however inquiries are ongoing and a specific figure will be arrived at in due course.

      It is unclear how long it will take to repair and replace the numerous items of damaged property.

      Mr Zeabari was charged with Destroy or Damage Property.

      Section 195 of the Crimes Act 1900 (NSW) defines property damage as intentionally or recklessly destroying or damaging the property of another person. The offence is also known as ‘malicious damage to property’.

      The prosecution must, beyond reasonable doubt that the accused intentionally or recklessly damaged property and that property belonged to another person.

      If the property was owned by the Accused jointly with another person, they can still be found guilty of this offence. This is a very common occurrence in domestic violence cases.

      It is crucial to the police case that the physical integrity of the property was altered in some way. This includes if the alteration is temporary (Grajewski v Director of Public Prosecutions (NSW) [2019] HCA 8).

      However, if there is no alteration to the physical integrity of the property, then there is no offence. For example, spitting on a metal seat would generally not be considered damage (Hammond v R [2013] NSWCCA 93).

      The maximum penalty for this offence varies depending on the value of the property damaged.

      If heard in the District Court, the maximum penalty for a charge of destroy or damage property is 5 years jail. If the offence was committed while in the company of another person, the maximum penalty becomes 6 years jail.

      If heard in the Local Court and the value of the property damaged is less than $5000, the maximum penalty is 12 months gaol and/or a fine of $5,500. Where the value is less than $2000, the maximum fine is $2,200;

      However, if the value of the property damaged is greater than $5000, the maximum penalty becomes 2 years jail.

      If heard in the District Court and the damage or destruction is caused by fire or explosives, the maximum penalty is increased to 10 years jail. If the offence was committed while in the company of another person, the maximum penalty becomes 11 years gaol.

      Section 32 Mental Health Applications

      Given the apparent mental health issues the Accused was dealing with, his criminal lawyers for destroy or damage property charges may seek to have the charges dismissed pursuant to a Section 32 Application.

      This is an order of the Court for the charge(s) to be dismissed. Usually it is on the condition that the Applicant undergo 6 months of treatment with a registered psychologist or psychiatrist.

      Section 32 of the Mental Health (Forensic Provisions) Act 1990 allows a charge (or charges) to be dismissed if a person suffers from a mental condition, mental illness or is cognitively impaired.

      If the Application is successful, you will usually be released with no criminal conviction recorded against you on the condition that you comply with a mental health treatment plan.

      If you are suffering from a mental condition for which treatment is available in a mental health facility, you are eligible to be dealt with pursuant to Section 32. Some examples of mental conditions include anxiety, depression, bipolar disorder, schizophrenia and anti-social personality disorder.

      Section 32 Applications are complex and require thorough preparation. You will require both an experienced criminal lawyer and as well as an experienced psychologist or psychiatrist.

      A psychiatrist or psychologist will need to prepare a report addressing:

      1. that you are cognitively impaired; or suffer from a mental illness; or suffer from a mental condition for which treatment is available in a mental health facility.
      2. whether there is a nexus between your condition and the offending (although this is not strictly necessary, it will increase the chances of the application succeeding);
      3. Your prospects of rehabilitation and likelihood of re-offending;
      4. the effect a criminal conviction will have on your prospects of rehabilitation and likelihood of re-offending;
      5. a mental health treatment plan for the next 6 months.

      The aim of the report and your lawyer’s submissions in Court will be to persuade the Court that it is more appropriate to deal with your case pursuant to Section 32 (ie. grant to application) than it is to deal with it according to law (ie. refuse the application).

      You can see a recent example of a successful section 32 application here. And within the last month, a famous Australian actor had his assault police charges dismissed on the grounds of mental health. You can read about that decision here.

      Mr Zeabari is currently held in custody at a mental health facility for assessment. Depending on the results of that assessment, it may provide an avenue for the charge to be dismissed.

      Community outrage

      Chairman at the Gallipoli Turkish Cultural Foundation, Abdurrahman Asaroglu released a statement to the public after the incident.

      Posting on social media, he said that someone had entered the mosque on Sunday night before causing “significant” damage.

      However, Mr Asaroglu received pushback on his comments linking the attack to anti-Muslim sentiment.

      He said, “(b)eing such an iconic Turkish Mosque we have unfortunately become a lightning rod for anyone wanting to express their anti-Muslim or Anti-Turk sentiment”.

      Mr Asaroglu made further comments suggesting that such attacks were generally inspired by imported hate from abroad and “have no place in Australia”.

      Family of suspect apologises

      These comments were soon rebuffed as the family of Mr Zeabari took to social media to explain what had occurred.

      Ihsan Zeabari, the suspect’s brother, said that his sibling had been dealing with mental health issues and there was no racial motivation.

      “My family apologise for his action…This is nothing to do with racial attack we are a Muslim family ourself,” he said.

      It would be expected that these mental health issues will play a large part in how the Court deals with the charge of ‘destroy or damage property’.

      Media forced to backtrack

      After the incident, media outlets were quick to report on the incident and make unfounded suggestions that the attack may have had a possible link to Turkey’s involvement in the Azerbaijan attack on the Armenian people.

      After the family of Mr Zeabari explained that there was no racial or political motivation, outlets such as 7News were forced to apologise.

      Police themselves confirmed that there was no link to the Azerbaijan attack.

      Indeed, the Australian-Armenian community were amongst the first to condemn the attack.

      The Armenian National Committee of Australia released a statement following the incident, setting out that they had contacted Police “to confirm the details of the arrested individual”.

      The Committee further stated that, “As egregious as the current attempted ethnic cleansing of the indigenous Armenians of the Republic of Artsakh by Azerbaijan and Turkey, there can be no justification for such vandalism or any attack or violation of the law, whoever the culprit”.

      “The Armenian-Australian community has no issue with our fellow Australians of Turkish or Azerbaijani background. Our dispute is with the governments of Azerbaijan and Turkey for their military aggression and attempted ethnic cleansing.”

      Property damage lawyers

      If you are charged with destroy or damage property, there is a strong possibility that you will receive a criminal conviction. This can have wide-ranging effects on your career and ability to travel overseas.

      That is why it is important to obtain advice from one of Australia’s best criminal defence lawyers who has successfully defended hundreds of these charges. Call Astor Legal on (02) 7804 2823. Or, you can email info@astorlegal.com.au.

      For more information you can contact our Sydney, Parramatta or Liverpool Criminal Lawyers. We can arrange a conference for you with a Law Society Accredited Specialist in criminal law.

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