A person who intentionally and without lawful excuse destroys or damages another person’s property by use of fire is guilty of arson. This is the definition of arson under the criminal laws of Victoria, Australia.
The law: Arson definition
Arson is made an offence by section 197 of the Crimes Act 1958 (Vic) (“the CA”). Section 197 of the CA makes it an offence to intentionally and without lawful excuse destroy or damage another person’s property. If fire is not used to damage or destroy the other person’s property then the police will charge an offender with ‘criminal damage’. This offence covers a range of acts including, for example, causing damage to someone’s car by kicking it or throwing a rock through someone’s house window. If fire is used to damage or destroy the property, then the offender will be charged with arson pursuant to s 197(6) of the CA. However, both ‘criminal damage’ and ‘arson’ have the same maximum penalty (10 years imprisonment).
The elements of the offence
In order to prove a charge of arson, the prosecution must prove each of the following six elements beyond a reasonable doubt:
- The accused destroyed or damaged property;
- The property belonged to another;
- The accused intended to destroy or damage property;
- The damage or destruction occurred by fire;
- The accused intended to damage or destroy the property by fire;
- The accused did not have a lawful excuse for his or her actions;
Elements 1, 2, 3 and 6 are the elements of ‘criminal damage’ so if the prosecution established those elements beyond a reasonable doubt, but not elements 4 and 5, an accused may be found guilty of ‘criminal damage’.
If the prosecution is unable to establish each of the prescribed elements beyond a reasonable doubt, an accused person is not guilty. This means that if the prosecution is unable to establish any one of the above six elements an accused person should be found not guilty. These elements are necessary to satisfy the meaning of arson in court. Our job as defence lawyers is to determine whether you have a defence to any of those six elements and then to present that defence in court.
Element 1: The accused destroyed or damaged property
What is property?
‘Property’ in a case of arson is defined in s 196 of the CA and means real or personal property of a tangible nature. Section 196 specifically states the following things are considered property for the purposes of arson: money; wild creatures which have been tamed or are ordinarily domesticated; other wild creatures or their carcasses that have been reduced into possession or are in the course of being reduced into possession.
What do ‘destroy’ and ‘damage’ mean?
Neither ‘destroy’ nor ‘damage’ are defined in the CA. ‘Destroy’ has come to mean, through the common law, an action rendering property useless for the purpose for which it exists. ‘Damage’ has come to mean the permanent or temporary reduction of functionality, utility or value of property.
Element 2: The property belonged to another
This element requires the property to either have belonged to another person, or to the accused and another person. Property belongs to another person where that person had a custody or control of it, a proprietary interest in it, or a charge on it. It is possible for the accused to commit an offence by damaging or destroying property that he or she co-owns with someone else.
Element 3: The accused intended to destroy or damage property
Pursuant to s 197(4) of the CA, arson definition applies to a person who has destroyed or damaged property only if either: his or her purposes or one of his or her purposes is to destroy or damage property; or he knows or believes that his conduct is more likely than not to result in destruction of or damage to property.
Elements 4 and 5: The damage or destruction occurred by fire and the accused intended to damage or destroy the property by fire
These two additional elements are what sets arson apart from ‘criminal damage’.
Element 6: The accused did not have a lawful excuse for his or her actions
The prosecution must also prove that the accused acted without lawful excuse. Some available lawful excuses are listed in s 201 of the CA and include:
- That the accused believed that the property belonged solely to himself or herself;
- That the accused believed he or she held a right or interest in the property which authorised him or her to engage in the conduct;
- The people he or she believed were entitled to consent to the destruction or damage had consented, or would have consented if they had known the circumstances of the destruction or damage;
- The accused believed that it was necessary to engage in the conduct to protect property belonging to himself or herself or another and the accused believed that property was in immediate need of protection, and the means adopted by the accused to protect the property were reasonable.
These excuses must only have been honestly held by the accused at the time that the accused damaged or destroyed the property and the accused’s belief does not need to have been correct or justified.
The common law defences of self-defence and consent are also considered lawful excuses.
For an accused person to be found guilty of arson, the prosecution must establish all six elements of the offence beyond a reasonable doubt. This means that if the prosecution is unable to establish any one of the above six elements, then arson definition is not satisfied and an accused person will be not guilty of the offence. As a result, there are many offence-specific defences such as:
- Was the property damaged or destroyed (applying each of these words relevant meaning)?
- Was the thing damaged or destroyed considered property for the purposes of the CA?
- Did the property belong to another or the accused and another?
- Can the prosecution prove the accused intended to destroy or damage the property? Can the prosecution prove the accused knew or believed his conduct was more likely than not to result in damage or destruction of the property?
- Can the prosecution prove the accused intended to damage or destroy the property by fire? Was it an accident?
- Did the accused have a lawful excuse?
- Did the accused believe the property belonged solely to himself or herself?
- Did the accused believe he was authorised to engage in the conduct?
- Did the accused believe it necessary for him or her to have engaged in the conduct to protect property?
- Did the accused believe the owner consented to the damage or destruction of the property?
There are also more generic defences available such as mistaken identity. Can the prosecution prove that it was the accused who did the relevant act and not someone else? Are the prosecution witnesses credible and reliable?
Arson by its very definition is a serious offence. It is punishable by 10 years imprisonment. Arson is an indictable offence which means that it may be heard in the County Court. Arson can also be tried summarily in the Magistrates’ Court if the property that was destroyed or damaged does not in the judgement of the Court exceed $100,000.
Key sentencing considerations
The most important offence-specific sentencing considerations are the extent and value of the damage or destruction caused; the risk caused by the offender’s conduct; the method used to cause damage or destruction; the degree of planning involved; the offender’s purpose; the type of property damaged; and the drain caused on public resources.
Sentencing outcomes in the Magistrates’ court
According to the Sentencing Advisory Council, which compiles sentencing statistics in Victoria, between July 2011 and June 2014 there were 345 accused persons sentenced for arson in the Magistrates’ Court. Of those people, 29.6% received a period of immediate imprisonment, 11.3% received a wholly suspended period of imprisonment, 32.8% received some form of a community based order, 7.5% received a fine, and 13.6% were discharged, dismissed or received an adjourned undertaking.
Sentencing outcomes in the higher courts
According to the available sentencing statistics, between July 2010 and June 2015 220 people were sentenced for arson in the County Court or Supreme Court. Unsurprisingly, given the greater property damage or destruction necessarily caused (the reason these cases were not heard in the Magistrates’ Court), the rates of imprisonment are higher. During this time 69.5% of people received a term of immediate imprisonment, 7.3% received a wholly suspended sentence, and 19.5% received some form of community based order.
To view sentencing decisions by Victorian County Courts for the charge of Arson, visit this page.
What to do if you have been charged with arson or if the police want to speak to you?
Seek legal advice as soon as possible from an expert lawyer who specialises in defence law. Criminal lawyers have the best knowledge on the legal definition of arson and whether it does apply to your circumstances. Arson is a serious offence and it is best to plan your defence as early as possible.