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Have You Been Charged with the Offence of Arson?

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What is Arson?

Arson is a serious criminal offence under section 197 of the Crimes Act 1958 (Vic) (“CA”). This offence covers three types of arson that result in criminal damage or destruction of property:

  1. Arson causing criminal damage (s 197(1) CA)
  2. Arson causing criminal damage endangering life (s 197(2) CA)
  3. Arson causing criminal damage with a view to gain (s 197(3) CA)
 

Arson is defined as intentionally damaging or destroying another person’s property by fire without lawful justification or excuse. Often, arson is mistaken for the offence of “criminal damage.” While the elements of both offences are similar, they are distinct.

Criminal damage is broader and does not require fire to be involved in the destruction of property, whereas arson must involve fire.

Police Interview

If you are accused of arson, you will likely be required to attend a recorded police interview. By this stage, the police will have conducted an investigation and may have evidence against you. You will be given the option to contact a lawyer for legal advice before the interview. We can provide confidential advice, helping you understand what to expect, what rights you have, and what you are or aren’t obligated to disclose.

Police officers are trained to elicit admissions that strengthen their case. Therefore, it is crucial to obtain legal guidance before proceeding with an interview.

Key Questions to Consider Before Pleading Guilty or Not Guilty

To determine whether you have a viable defence against an arson charge, it’s essential to consider the following:

  • Does the prosecution have strong evidence against me?
  • Did I intend to damage or destroy the property, or was it an accident?
  • Did I believe I had the owner’s consent?
  • What were the circumstances surrounding the incident?
  • Was I acting alone or with others?
  • Did I have a lawful excuse for my actions?
  • Should I plead guilty or not guilty?
  • What are the potential penalties, and how can they be minimised?
  • Can any defences be raised to argue my innocence?

What Needs to Be Established?

To secure a conviction for arson, the prosecution must prove certain elements beyond a reasonable doubt. These elements vary depending on the type of arson offence.

  1. Arson Causing Criminal Damage (s 197(1) CA)
    • Did you damage or destroy property by fire?
    • Was the property owned by another person?
    • Did you intentionally cause the damage or destruction, or were you aware that it was likely to happen?
    • Did you act without lawful justification or excuse?
  2. Arson Causing Criminal Damage Endangering Life (s 197(2) CA)
    • Did you damage or destroy property by fire?
    • Did you intentionally or knowingly endanger someone’s life as a result of the fire?
    • Was the property owned by someone else?
    • Did you act without lawful justification or excuse?
  3. Arson Causing Criminal Damage with a View to Gain (s 197(3) CA)
    • Did you damage or destroy property by fire?
    • Was your act dishonest, and did you aim to gain some benefit for yourself or another person?

Definitions

Property includes real or tangible property such as buildings, vehicles, etc.

Destroy requires the property to be rendered useless for its intended use.

Damage requires the property to be permanently or temporarily altered, which subsequently interferes with its use or purpose. 

Can I Be Released on Bail if Charged?

If you are charged with arson, you can be released on bail unless the court deem you to be an unacceptable risk to the community. In cases of arson causing criminal damage, which is not a Schedule 2 offence, the police may release you on bail without requiring a Magistrate’s intervention. However, if remanded, you can apply for bail at any time.

Where Will My Case Be Heard?

a gavel on a wooden block

Due to the seriousness of the offence and potential penalties, arson cases are heard in the County Court or Supreme Court.

a gavel on a wooden block

Defences to Arson

Right or Authority to destroy or damage (s 201(2)(a)), this is if you honestly believe that:

  • The property solely belonged to you; or
  • You had some right or interest in the property that permitted you to cause the destruction or damage by fire; or
  • Alternatively, you would have received consent from the necessary parties to destroy or damage the property.

Protection of property, interest or right (s201(2)(b)), this is if you have:

  • Acted to protect the property either belonging to you or another, or you were protecting a right or interest in the property that was, or you believed to be vested in yourself or another.
 

Finally, the defence of self-defence, where you destroyed or damaged the property in a genuine effort to defend yourself.

Or Consent, where you had the required consent to destroy or damage the property from the owners of the property.

If the prosecution fails to prove beyond reasonable doubt that the damage or destruction was caused by fire or that you intended to cause the damage, a lesser charge of criminal damage may be pursued.

Penalties

Arson is a serious offence, and the penalties are severe. If convicted, the maximum penalty for arson causing criminal damage is 15 years’ imprisonment (level 4 imprisonment).

Factors Considered in Sentencing

In determining the appropriate sentence, the court may take into account:

  • The nature and gravity of the offending conduct
  • Your role in the offence
  • The circumstances surrounding the offence, including any prior criminal history
  • The level of planning involved and the method used
  • The extent and value of the damage caused
  • The impact on any victims, both short-term and long-term

Assault Charges

  • Aggravated Assault
  • Wilful Damage
  • Common Assault
  • Public Display of a Nazi Symbol or the Nazi Salute
  • Harassing a Witness
  • Recklessly Causing Serious Injury In Circumstances Of Gross Violence
  • Affray Charges In Victoria
  • Intentionally Causing Serious Injury in Circumstances of Gross Violence
  • Intentionally causing Serious Injury
  • Recklessly Causing Serious Injury
  • Intentionally Causing Injury
  • Administering Certain Substances
  • Threats to Kill and Assault Offences
  • Stalking
  • Negligently Causing Serious Injury
  • Extortion With Threat to Kill
  • Extortion, With Threats to Destroy and/or Endanger Property
  • Threatening to Prevent Arrest
  • Using a Firearm in the Commission of an Offence
  • Being Armed with Criminal Intent
  • Kidnapping
  • Robbery
  • Armed Robbery
  • Aggravated Burglary
  • Home Invasion
  • Aggravated Home Invasion
  • Arson
  • Criminal Damage
  • False Imprisonment
  • Public Nuisance
  • Riot
  • Rout Offence
  • Unlawful Assembly
  • Intentionally Causing a Very Serious Disease
  • Carjacking
  • Aggravated Carjacking

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Next Steps

If you are under investigation or have been charged with arson, it is vital to seek legal assistance immediately. Our experienced criminal lawyers can help you understand the allegations, review the evidence, and develop a strategy to achieve the best possible outcome. Contact our office today on 1800 130 120 to discuss your case.

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  • 2/212 Barkly Street, St Kilda Victoria, 3182 Australia
  • 1800 130 120
  • marcus@mklawfirm.com.au
Mk Law

Top 5 firms by reputation dealing with traffic and criminal law matters.

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Phone: 1800 130 120
Email: marcus@mklawfirm.com.au

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