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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Arson (Vic)


Arson is considered a very serious and very dangerous crime, due to its potential to cause death and destruction, and quickly. In Victoria, arson is made an offence by the Crimes Act 1958.

Legislation related to arson

Section 197 of the Act states a person who intentionally and without lawful excuse destroys or damages another person’s property commits an offence. Section 197(6) states that if fire is used to destroy or damage property, the person must be charged with arson. The maximum penalty is imprisonment for 15 years.

Section 197A states that a person who commits arson and in doing so causes the death of another person, the maximum penalty is imprisonment for 25 years.

Bushfires

Section 201A states a person commits an offence if they intentionally or recklessly cause a fire and are reckless about whether the fire spreads to vegetation on another person’s property. The maximum penalty is imprisonment for 15 years.

A person will not be deemed to be reckless about the spread of the fire if they:

  • lit the fire in a fire prevention, fire suppression or other land management activity;
  • acted in accordance with regulations for the activity;
  • believed carrying out the activity was justified.

“Causing” a fire includes lighting, maintaining or failing to contain a fire.

Planes

Section 246B states a person who unlawfully and maliciously sets fire to an aircraft, whether complete or incomplete, commits an offence. The maximum penalty is imprisonment for 15 years.

Arson matters in court

If the value of the property destroyed or damaged is less than $100,000, the matter can be heard in the Magistrates Court. Otherwise the matter can be heard in the County Court.

Prosecution of arson

To prove a charge of arson, the prosecution must prove each of the four elements beyond a reasonable doubt:

  1. The person destroyed or damaged property by fire;
  2. The property belonged to another person;
  3. The person intended to destroy or damage the property;
  4. The person did not have a lawful excuse for their actions.

Lawful excuse defence

A person has a lawful excuse if at the time of the action, the person believed:

  • the property belonged solely to them;
  • they held a right in the property which authorised them to take the action;
  • those entitled to consent to the destruction or damage had consented or would have consented had they known the circumstances.

As long as the belief was honestly held, it does not matter whether the belief was accurate or justified.

Sentencing for arson

When sentencing an offender for arson, the court will consider factors including:

  • the extent and cost of the damage or destruction;
  • the risk caused by the arson;
  • the method used;
  • the degree of planning;
  • the purpose of the arson;
  • the type of property damaged or destroyed;
  • the impact on public resources.

Country fires

The Country Fire Authority Act 1958 also contains an offence of causing a fire in a country area in extreme weather conditions. Section 39A states a person commits an offence if they light a fire in a country area of Victoria “in such circumstances of location, atmospheric temperature, wind velocity and flammable vegetation or other combustible substance” that the fire causes a danger to the life or property of others. The penalty is imprisonment for at least 3 months and no longer than 2 years.

It is a defence to the charge if the person can prove:

  • the danger was caused by someone else’s actions;
  • the extreme conditions were not present at the time of lighting the fire, and those conditions could not reasonably have been foreseen;
  • they were acting under instructions and took all precautions, followed all regulations, and did everything possible to suppress or extinguish the fire.

Section 39C states if a person causes a fire in a country area of Victoria with an intent to destroy any vegetation, produce, stock, crop, fodder or other property, they face a prison term of at least 1 year and no longer than 20 years.

Motives for arson

A common question from the public after an arson incident is why would someone deliberately light a fire to cause harm? Possible motives include profit, animosity, vandalism, crime concealment, political protest and psychopathological reasons.

Profit

A person may commit arson to gain a material benefit. This includes setting fire to a business premises to collect an insurance payment, or to remove a business competitor.

Animosity

A person may commit arson as an outlet for anger, hatred or revenge.

Vandalism

Vandalism is the wanton and malicious destruction of property, with vandalism by arson usually linked to juvenile offenders, possibly due to factors such as peer group pressure or boredom.

Crime concealment

Arson is often used to conceal or destroy evidence of another crime, such when a stolen vehicle is torched to destroy fingerprints and DNA evidence.

Political protest

In this context, arson is used to signify extreme protest. Examples include the firebombing of abortion clinics, or someone setting fire to a family’s house to express racism.

Psychopathological

Arsonists referred to psychiatric hospitals have been generally found to have mental handicaps, schizophrenia, personality disorders, substance abuse and mood disorders as the most frequent diagnoses.

For advice or representation in any legal matter, please contact Armstrong Legal.

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