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  • Arson Offences and Penalties in Victoria (VIC)

    Arson occurs when a person intentionally and without lawful justification damages or destroys another person's property using fire.

    Australian jurisdictions have specific laws regarding arson. Such crime in Victoria is prosecuted as unlawful property damage under Section 197 of the Crimes Act 1958 (Vic).

    According to Section 197A of the Crimes Act, arson causing death is a separate crime in Victoria. This crime has a maximum jail term of 25 years. Furthermore, a specific offence of carelessly or deliberately causing a bushfire (Section 201A) carries a maximum prison term of 15 years.

    If you are convicted of an Arson offence in Victoria (Vic), the offence will show up as a disclosable court outcome (DCO) on a national criminal record check in Victoria. 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 Victoria’s Spent Convictions Scheme.

    What is Arson?

    Arson is a crime that involves intentionally setting a property on fire and causing harm or devastation to it. Section 197(6) of the Crimes Act 1958, in Victoria, covers intentional harm and malicious destruction.

    • Intentional damage, such as intentionally setting fire to someone's property to cause damage.
    • Careless damage (reckless destruction can include, for example, starting a fire with knowledge or belief that it would cause destruction to the property);

    When the fire damage was created to threaten another person's life or dishonestly acquire anything, it is also considered arson. Setting fire to the property is a severe crime that may result in lengthy jail time.

    Common preventable causes of bushfires in Victoria

    Most preventable bushfires in Victoria are ignited by members of the local community who work and reside there. Several of their avoidable actions have resulted in bushfires, including the following:

    • Burning things during forbidden times (e.g. during a total fire ban),
    • Using machinery or equipment on days when the danger of fire is higher,
    • Failure to extinguish flames correctly, such as bonfires and campfires,
    • Disposing of barbeque coals in an incorrect manner,
    • Automobile exhausts or emissions from trucks flues meeting with grassland next to a roadside verge,
    • Children and adolescents doing 'fire experiments.

    Victorian law enforcement officers rely on the community to assist them in monitoring activities and behavior that may result in a wildfire. Therefore, it is critical to call the police or fire brigade if you notice any suspicious behavior.

    The elements of an arson offence in Victoria

    To prove an arson case beyond any reasonable doubt, the prosecutor must establish each of the following 6 elements:

    1. The accused is the one who destroyed or damaged the property in question;
    2. The property was owned by someone else other than the accused;
    3. The accused wanted to destroy or cause damage to property;
    4. It is a fire that caused the destruction or damage to the property;
    5. The accused planned to use fire to cause damage to or destruction to the property;
    6. The accused lacked legal justification for their conduct.

    An alleged offender may be found not guilty if the prosecutor cannot prove each of these elements beyond reasonable doubt.

    • Element #1: The accused is the one who destroyed or damaged the property

    What is property?

    Property is anything over which an individual has legal rights and which includes all of a person's physical assets or resources in their entirety. In arson cases, the term 'property' refers to tangible, real possessions. Section 196 of Crimes Act 1958 (Vic) specifies what constitutes property for the purpose of arson: Cash; any domesticated wild animal; other living creature, or their carcass that has been reduced to the possession or is in the process of being converted to possession.

    What are the definitions of 'destroy' and 'damage'?

    There is no clear definition for the terms 'destroy' or 'damage' in the statutes of the law in Victoria. 'Destroy' has evolved to imply, in common law, an activity that renders property worthless for its intended use. 'Damage' has come to refer to the temporary or permanent loss of a property's functioning, usability, or worth.

    • Element # 2: The property did not belong to the accused but to another person

    This element demands that the property be entirely held by someone else or partly owned by the accused and another person. For example, someone else may have an interest in a property if they own it, hold it, have proprietary rights in it, or have a charge against it. In addition, for some reason, someone accused may purposely damage or destroy property that they co-own with another.

    • Element # 3: The accused intended to damage or destroy property

    Section 197(4) of the Crimes Act 1958 suggests that an arsonist is someone who deliberately sets fire to property and damages or destroys it for any of the following reasons:

    • One of their objectives, or one of many goals, is to damage or destroy property; Or,
    • They are aware or anticipate that their actions will more than likely lead to the damage or destruction of property.
    • Elements #4 and #5: The property was damaged or destroyed due to the fire set by the accused, and the accused meant to do so

    These two additional components distinguish arson from criminal damage.

    • Element # 6: The defendants' conduct lacked any legal basis

    Additionally, the prosecution must establish that the accused acted without legal justification.

    Self-defence and express consent, common law defences, are among the common legal defences for arson.

    What Defences are Available?

    There are two possible defences, depending on the nature of the underlying offence.

    • Legitimate Excuses (or Statutory Defenses) as defined in the Crimes Act 1958, and,
    • Right (or Authority) to Destroy or Damage (as defined in section 201(2)(a) of the Crimes Act 1958)

    As per Section 197(1) and (2) of the Crimes Act 1958, the accused must have been sincere in their belief that:

    • They were the sole owners of the property; or
    • They possessed a title or had a legal interest in the property that allowed them the authority to destroy or damage it; or
    • They had received authorization from all necessary parties who might or would have agreed to the destruction or damage.

    Under the Protection of Property, Interest, or Right (Crimes Act 1958, section 201(2)(b)), the following factors should be present:

    • The accused must have acted to safeguard their own or someone else's property or to safeguard rights or interests in property that is, or they understood it is, vested in them or others.
    • The accused must have had a reasonable belief that the property, rights, or interests were in imminent danger and that the actions taken to protect it were reasonable in light of the facts.

    Common Law Defendants (in all cases)

    Self-Defence

    The accused rationally judged that causing damage or destruction to the property by fire was essential for self-defence.

    Consent

    The defendant obtained permission from all property owners in question to damage, destroy, or do so to avoid risk to life.

    Where Is My Case Going to be Heard?

    Except if the property damage reaches $100,000, a case of arson will usually be tried in the Magistrates Court of Victoria. Otherwise, the case may then be tried in County Court.

    Thus the court to hear the matter is decided upon depending on the extent of the damage.

    Why do people commit arson?

    There have been many analyses on the motivations of arsonists. Boredom, loneliness, vengeance, the desire to hide a crime, and greed are just a few of the reasons people commit these crimes. Arson has also been related to mental illness, especially schizophrenia and drug and alcohol addiction.

    Young people are believed to be responsible for lighting around half of the state's intentionally set fires. In addition, bushfires in Victoria are more likely to start in locations where the suburbs meet the bush, especially places characterized by high rates of young unemployment, making them a particularly hazardous combination.

    • Vandalism

    Miscreants who intentionally set fire to property generally aren't older than fifteen when they do so. An abandoned car, building, or school is often the target of arsonists.

    • Excitement

    To get people's attention, those who are looking for thrills may occasionally intentionally start fires. These blazes are often lit in a place where the perpetrator is well-known. In many cases, the perpetrator stays on the scene.

    • Revenge

    People may set things on fire as a form of vengeance for perceived or actual wrongdoing. These fires may be directed against a specific person, institution, neighbourhood, or collection of individuals.

    • Cover up of criminal activity

    Fire may be lit for various reasons, including to cover up a previous crime, such as arson or burglary. It may be intended to eliminate any trace of the crime or the victim's identification.

    • Profit

    A fire may also be ignited to evade financial responsibilities. For example, a vehicle or property may be set on fire to collect the insurance claim or avoid repayments.

    Sentencing outcomes for Arson in Victoria

    A carelessly started or abandoned fire is a serious offence with grave consequences. In Victoria, the maximum sentence for arson that results in death is 25 years in jail.

    The maximum punishment for starting a wildfire deliberately or carelessly is 15 years in jail.

    Will an Arson offence in Victoria (VIC) show up on a national criminal history check?

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

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

    Sources

    Crimes Act 1958 (Vic) - https://www.legislation.vic.gov.au/in-force/acts/crimes-act-1958/292

    Legal Aid Victoria (Arson, Fiers and Fireworks) - https://www.legalaid.vic.gov.au/find-legal-answers/criminal-offences/arson-fires-and-fireworks

    Judicial College of Victoria (Arson) - https://www.judicialcollege.vic.edu.au/eManuals/CCB/5200.htm

    NCBI (Australian arsonists: an analysis of trends between 1990 and 2015) - https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6762153/

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