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  • Home Resources & Technical Articles Criminal Offence Topics (A to Z) Arson Offences Arson Offences and Penalties in New South Wales (NSW)

    Arson Offences and Penalties in New South Wales (NSW)

    In New South Wales (NSW), intentionally starting a fire and letting it spread is a crime punishable by up to fourteen years in prison. If someone is killed in the fire, the person who started it may face manslaughter or murder charges, which attracts a maximum penalty of 25 years in prison.

    Arson is a highly serious offence in the eyes of the law. Arson or Bushfires usually cause significant property damage and the death or harm of animals. Due to the seriousness of the offence, imprisonment is often the starting point of punishment. A non-conviction order is unlikely to be granted in arson cases.

    If you are convicted of an Arson offence in the state of New South Wales (NSW), the offence will show up as a disclosable court outcome (DCO) on a national criminal history check in NSW. The offence will remain on an individual’s criminal record check unless it is legally expunged after a certain period of time if it qualifies for NSW’s Spent Convictions Scheme.

    Legal Definition of an Arson Offence in New South Wales

    In 2019, two young men were arrested in northern New South Wales for allegedly causing a fire in the wild by gathering natural incendiaries and papers then setting them ablaze using a pocket lighter. The action was interpreted to mean arson, as per the state statutes, allowing them to be charged and convicted.

    Arson is a terminology defined as malicious destruction and vandalism of property using fire or explosives. The Crimes Act 1900 (NSW) does not explicitly define malicious vandalism and destruction of property as arson. However, the term is implied in the Act.

    If you are suspected of arson, you will be charged based on the type of offence committed. Under the Crimes Act 1900, four different violations make up the offence of arson.

    • Destroy or vandalise property

    Under Section 195 of the Crimes Act, an individual is guilty of an offence if they knowingly or recklessly destroy or vandalise property belonging to another person. If damage is a result of a fire, the accused can face a maximum imprisonment of ten years, and if there was an accomplice, an 11-year sentence is imposed.

    If the offence was committed during a public disorder such as violent protests and riots, the defendant could get a maximum sentence of seven years imprisonment. If explosives were used, it would attract a maximum of 13 years behind bars.


    • Intend to cause injury

    According to Section 196 of the Crimes Act, an individual is guilty of an offence if they vandalise or destroy property intending to cause bodily harm to another person. If convicted, the defendant faces a maximum penal service of 14 years if the prosecution proves the damage resulted from the fire. In case the offence occurred during a public disorder, the maximum sentence is 16 years.


    • Dishonestly destroy or vandalise property

    Under Section 197 of the Crimes Act, individuals commit an offence if they knowingly and dishonestly destroy and deface property by using fire. The Act carries a maximum of 14 years of penal service and 16 years if the offence is committed during a public disorder. The offence includes provisions for circumstances where the property is deliberately damaged to commit insurance fraud.


    • Intend to endanger life

    As per Section 198 of the Crimes Act, it's an offence in New South Wales to start a fire to risk the lives of others. The crime carries the heaviest penalty of a maximum of 25 years if found guilty. If life is lost due to arson, the accused can get charged for serious crimes like manslaughter.

    Legal Definition of a Bushfire Offence in New South Wales

    Section 203E (of the Crimes Act 1900) defines the crime of deliberately starting a bushfire and being careless about its progress as follows:

    A person commits a crime if they are careless about spreading a fire to vegetation on private or public property.

    A bushfire can involve:

    • Lighting a fire,

    OR

    • Maintaining a fire,

    OR

    • Failing to put out a fire, even when someone else started it or when the fire is out of control.

    In 2018, the New South Wales parliament increased the maximum sentence for causing wildfires from 14 to 21 years of imprisonment.

    However, under the law a defendant may overcome an arson charge by presenting legal excuses such as starting the fire under the instructions of a firefighter, starting the fire as part of firefighter employment, or starting the fire in the course of hazard reduction operations. Given the deadly and distrustful nature of wildfires, a defendant can face a maximum sentence of 25 years.

    Penalties for causing bushfires in NSW

    If charged under Section 100(1) of the Rural Fires Act 1997 (NSW) that outlines the offence of knowingly starting fires, the defendant can get a maximum penalty of five years penal penalties and or a fine of $11,000 for any individual "who without lawful authority”:

    1. Sets fire or causes fire to be set to the land or property of another person, the Crown, or any public authority";
    2. Being the occupier or owner of any land permits fire to escape from the land under such situations as to cause (or be likely to cause) injury or damage to the person, land, or property of another person or the land or property of the Crown or a public authority.

    According to the Crimes Act statuses, causing a fire when there is a total fire ban is to be considered aggravating during sentencing, which attracts a maximum penalty of seven years behind bars or a fine of $120,000 for any person who committed the offence while aware there's a total fire ban in place. Leaving fire that you started unattended or before it is wholly extinguished can attract a maximum penalty of 12 months penal servitude and a fine of $5,500. If an individual dies due to a deliberately lit wildfire, the defendant can be charged for other serious offences such as manslaughter.

    Common reasons for Committing arson

    To begin, bear in mind that human conduct is seldom easy to categorise. Limits are established by the many and diverse factors that are typically at work in any scenario. For example, labelling an offender as a "crime concealment" arsonist may be deceptive. Other elements in their mind, such as "animosity," are always at play.

    The following are the most frequent causes for arson, according to the Australian Institute of Criminology:

    • Vandalism

    This is the main reason behind an arson attack. It's the malicious Act of using fire to damage property and is the second most common form of arson.


    • Excitement

    Individuals suffering from mental disorders can start a fire as a form of thrill-seeking activity for their own amusement. The fire can range from structural property to bush fires.


    • Revenge

    Arson can be used as retaliation for a perceived or actual injustice. These types of arsons can be dangerous since they have a target and can even result in death.


    • Crime Concealment

    In an attempt to conceal another form of crime, an individual uses fire to burn all evidence that can lead back to them.


    • Profit

    Insurance claims and monetary gains are some factors that can lead to arson. If a person wants to increase property values, escape financial obligations or intimidate and eliminate competitors.


    • Extremism

    This applies mainly to political, religious, or social instances. Where individuals start fires to further their ideologies, such attacks are highly organized, and they can take time to acquire the right target. Extremist arsons can be categorised into terrorism and civil disturbance or riots.

    Possible defences for an Arson Offences in New South Wales (NSW)

    If charged with arson in New South Wales, the defendant may possibly overcome their case by proving they had legal excuses for committing their actions. They can also defend their case by claiming that they did not knowingly start a fire that resulted in structural arson or bushfire arson. To successfully convict an accused arsonist, the prosecution team must prove that the elements of arson apply to the defendant's case.

    If the prosecution fails to demonstrate even a single element beyond a reasonable doubt, the defendant can walk out of the case. To successfully sentence a suspected arsonist for the crime, the prosecution team must satisfy each of these arson elements beyond reasonable doubt:

    • As per the New South Wales definition of law, was the property vandalised or destroyed using fire?
    • Can all the things damaged or destroyed be categorised as property?
    • If the property is destroyed, does the loss fall wholly on the accused or is the loss shared with another individual?
    • The prosecution team must prove that the suspected arsonist intention,
    • Did the defendant believe they had authorisation from the property’s owner to vandalise or destruct the property?

    According to the Crimes Act 1900 (NSW), it is an offence for an individual to deliberately start a fire and are reckless not to care whether the fire might spread to private property, public land, or vegetation.

    Arson-related charges carry heavy sentences in the state of New South Wales. Parliament is looking to continue increasing the maximum penalty, looking to push it beyond the current 21-year sentence. It is due to an increase in arson-related crimes, resulting in the loss of millions annually.

    The government is looking to tackle the challenges affecting the successful prosecution of suspected arsonists.

    Will an Arson offence in New South Wales (NSW) show up on a national criminal history check?

    If an individual is convicted in NSW for the offence of Arson, the offence will show up as a disclosable court outcome (DCO) on the results of their national criminal history check.

    Individuals can obtain a police check online via the Australian National Character Check - ANCC® website.

    Sources

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

    Rural Fires Act 1997 (NSW) - https://legislation.nsw.gov.au/view/html/inforce/current/act-1997-065

    Australian Institute of Criminology (Motives for committing arson: part 1 - general arson) - https://www.aic.gov.au/publications/bfab/bfab4

    New South Wales Sentencing Council (Fire Offences) - http://www.sentencingcouncil.justice.nsw.gov.au/Documents/Current-projects/Fire/Report%20Fire%20Offences.pdf

    Judicial Commission of New South Wales (Damage by Fire and Related Offences) - https://www.judcom.nsw.gov.au/publications/benchbks/sentencing/damage_by_fire.html

    New South Wales Bureau of Crime Statistics and Research (Arson in NSW) - https://www.bocsar.nsw.gov.au/Publications/CJB/cjb07.pdf

    New South Wales Parliamentary Library Research Service (Arson) - https://www.parliament.nsw.gov.au/researchpapers/Documents/arson/02-03.pdf

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