Are you Facing Arson Charges?
Dribbin & Brown Criminal Lawyers have handled hundred’s of arson cases, if you have been charged, then we can help you.
What is Arson?
Arson is an offence relating to the destruction or damage of property by fire.
Section 197(6) of the Crimes Act 1958 captures both
- Intentional damage (e.g., setting someone’s property alight with the goal of damaging it); and
- Careless damage (e.g., lighting a fire knowing or believing it is likely to damage the property);
Arson also extends to circumstances where the fire damage was caused either to endanger the life of another, or to dishonestly achieve a gain of some kind. As such, it is clear that arson is a serious offence, carrying a likely term of imprisonment if found guilty.
What are the Elements of Arson?
Section 197(6) of the Crimes Act 1958 outlines the offence of arson as the use of fire in the destruction or damage of property. In all cases, the prosecution is required to establish that the defendant destroyed or damaged the property in question by the use of fire, and that they intended, or knew or believed it was more likely than not, that by using fire they would damage or destroy the property.
The prosecution is then required to prove one of the following additional sets of elements in establishing the charge of arson:
Arson from Criminal Damage (section 197(1)):
- The property damaged or destroyed belonged to another; and
- The defendant had no lawful excuse for their conduct.
Arson from Criminal Damage Intending to Endanger Life (section 197(2)):
- The defendant intended, or knew or believed it was more likely than not, that the destruction or damage to property by fire would endanger the life of another; and
- The defendant had no lawful excuse for their conduct.
Arson from Criminal Damage with a View to Gain (section 197(3)):
- The defendant’s intention, or knowledge or belief of it being more likely than not, that they would cause property damage or destruction by fire was dishonest; and
- The defendant completed their conduct with the view to gain for themselves or another.
Property, Damage, and Ownership
For the purposes of this offence, any property damaged or destroyed is any real or tangible property (e.g., buildings, vehicles, etc.). The Crimes Act 1958 does not require the prosecution to establish specific ownership of the property, or even sole ownership, simply that it is owned by someone, relating to whether some form of custody or right is held over the property by a legal entity (e.g., a person, trust (section 196(3)), or corporation (section 196(4)).
Regarding damage or destruction:
- Destruction requires the property be rendered useless for its intended purpose;
- Damage involves permanently or temporarily affecting the physical integrity of the property – merely interfering with its use or operation its not sufficient (Grajewski v DPP  HCA 8, ).
In the case of arson, the expected damage or destruction would be that caused by fire – burns in surfaces, structural damage, etc.
Intention, Knowledge, and Belief
Any requirement of intention, knowledge, or belief pertaining to either the damage or destruction of property, or the endangering of the life of another, requires the specific intent, knowledge, or belief to do so by the use of fire (R v Cooper (G) and Cooper (Y)  CLR 524).
Section 197(4)(b) and 197(5)(b) of the Crimes Act 1958 extends the defendant’s intent to include their knowledge or belief that it was more likely than not that the damage/destruction or life endangerment would result by their use of fire. In proving this, the prosecution need only prove that the defendant knew or believed it was more than 50% likely; this is comparable to similar tests for recklessness, which simply require a consequence be probable.
Specifically relating to where the offence of arson endangers the life of another, it is worth highlighting that the intent, knowledge, or belief referred to in the Crimes Act 1958 relate to the danger caused by the damage or destruction of property, not the danger caused by the fire itself (R v Steer  AC 111).
Dishonesty and Gain
The requirement of dishonesty under section 197(3) of the Crimes Act 1958 requires the prosecution to prove that the intent, knowledge, or belief of the defendant as to the damage or destruction caused were both capable of and did in fact make their conduct dishonest (Macleod v R (2003) 214 CLR 230). Dishonesty adopts is regular meaning here, but is assessed against an ordinary person.
Any view to gain derived from this dishonesty need not relate only to the defendant themselves, but can refer to another. Additionally, ‘gain’ in the context of this section would seem to adopt its ordinary meaning, and is not limited to monetary gain. However, the view to gain must have existed when the act of the defendant occurred.
What is the Maximum/Average Penalty?
Section 197(7) of the Crimes Act 1958 outlines a maximum penalty of 15 years imprisonment if found guilty of arson.
Regarding the average sentence handed down, it is important to note that the sentence of any given matter is entirely related to the circumstances of that case. Any averages provided are intended to only be a guide; if you wish for a more detailed assessment of your likely sentence, please call the office to arrange a consultation.
With this in mind, the Sentencing Councill of Victoria found that, over the past five years from 2015-2016 to 2019-2020, the average length of imprisonment for cases of arson was 2 years and 4 months.
What Defences are Available?
There are two sets of defences which may be relevant, depending on the base offence (section 197(1), (2), or (3) of the Crimes Act 1958) being proved by the prosecution:
Lawful Excuse -> Statutory Defences (section 197(1) and (2) of the Crimes Act 1958):
Right or Authority to Destroy or Damage (section 201(2)(a) of the Crimes Act 1958):
- The defendant must have honestly believed that:
- The property solely belonged to them; or
- They had some right or interest in the property that permitted them to cause the destruction or damage by fire; or
- They had, or would have, received consent from all necessary parties who could consent to the destruction or damage.
- Protection of Property, Interest, or Right (section 201(2)(b) of the Crimes Act 1958):
- The defendant must have acted to protect property either belonging to themselves or another, or to protect a right or interest in property that was, or they believed to be, vested in themselves or another.
- The defendant must have honestly believed the property, right, or interest was in immediate danger, and that the conduct taken to protect property was reasonable given the circumstances.
Common Law Defences (all instances):
- The defendant reasonably believed that causing the damage or destruction of property by fire were necessary to defend themselves.
- The defendant had consent from all owners of the property to cause the damage, destruction, or life endangerment.
Note this is a non-exhaustive list of defences that may be relevant in cases of arson. For other defences, see our criminal law defences page.
Where Will my Case be Heard?
A charge of arson, depending on the damage caused, will typically be heard in the Magistrates Court, unless the value of property damage exceeds $100,000. In such instances, the charge may be heard in the County Court.
What Should I Do Next?
Arson is a serious charge which can result in lengthy imprisonment if you are convicted. You should make an appointment with an arson lawyer as soon as possible to ensure proper representation and the best possible defence is provided for you.)