The Law on Damage or Destroy Property by means of Fire or Explosive Charges in NSW

By Sahar Adatia and Jimmy Singh.

In the last few decades, the kebab van has become a ubiquitous part of urban culture all over the world.

Indeed, long before the food truck craze, the kebab van had already developed its own distinct identity: a sustenance station of modest scale, a temporary construction mostly existing within a van or trailer, a food outlet typically found within the confines of petrol stations or car washes.

As if by stealth, the kebab van steadily began appearing through suburban road networks, alongside busy city roads, close to university colleges and next to train stations.

And before you could say, “Can I get garlic sauce with that?”, kebab vans had suddenly proliferated their way entirely through mainstream culture, proving a popular place for a late-night snack and a prevailing alternative to big fast-food restaurants like McDonald’s and KFC.

Undeniably, the vast majority of us have some sort of fond memory demolishing the well-liked snack, perhaps back in the day as a student scrounging off cheap fodder, or after searching for grub in the early hours of the morning after a boozy night out on the town, so it might come as sad news that last week, a beloved kebab van became victim to an arson attack.

Police are now treating the incident as suspicious.

Kebab Van Parked at Mile End Destroyed in Fire Attack

On 8 August 2019, a food van parked at a Mile End property in Adelaide that was recently raided by police was destroyed in a blaze.

At about 3:30am, emergency crews were called to the property at Mile End, where they found the kebab van on fire in the front yard of the property.

The Metropolitan Fire Service (MFS) swiftly extinguished the burning van, however the fire left the food truck completely destroyed.

The Mile End home was not damaged and no one was injured in the incident.

Evidence at Scene Suggests Blaze not an Accident

While there was no damage done to the home, police did find accelerant at the scene and are treating the fire as suspicious.

Speaking of the incident, Constable Kylie Simpson said the evidence suggested the blaze was no accident.

“Thankfully there was no other damage and no other injuries,” she said.

“But there was some accelerant at the scene, so we do believe it was liberally lit.”

South Australia Police Assessing Possible Link Between Kebab Van Fire and Fire at Marleston Gym the Following Day

According to South Australia Police, the investigation into the destruction of the kebab van is still in its early stages and detectives are currently attempting to ascertain whether the attack is linked to an incident in which a Marleston gym was destroyed by a suspicious fire the following day.

Police allege just before 1:20am on 9 August, police and fire crews were called to Marker Avenue after reports that a gymnasium was on fire.

MFS moved rapidly and were able to extinguish the fire, however not before it caused significant devastation to the building and some minor damage to a neighbouring premise.

The fire is believed to be deliberately lit, which is currently being examined by Crime Gangs Task Force detectives.

Not the First Time Humble Kebab Outlet Target of Suspicious Fire

While the kebab van seems to have served us well, sadly, this is not the first time the modest staple has become victim to a suspicious fire.

Back in 2015, Youi’s Kebabs in Rockdale in Sydney’s south was set on fire.

NSW Fire and Rescue crews were called to the Tramway Arcade shop where they put out two fires that were blazing inside.

No one was injured; however, a crime scene was established as St George police believed the fires were lit deliberately.

The Law on Damage or Destroy Property by means of Fire or Explosive Charges in NSW

In NSW, it is an offence to damage or destroy another person’s property by means of fire or explosive.

If you are found guilty of a destroy or damage property charge, depending on the circumstances, you can face a maximum penalty of up to 12 years in jail.

The offence is outlined in section 195 Crimes Act 1900 (NSW).

It states that a person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable to imprisonment for up to 5 years.

However, if the destruction or damage is caused by means of fire or explosives, then the penalty increases to a maximum imprisonment of 10 years.

Additionally, a person who, in the company of another person or persons, intentionally or recklessly does this will be liable to a maximum of 6-years prison.

If the destruction or damage is caused by means of fire or explosive, the maximum penalty is 11-years imprisonment.

A person who intentionally or recklessly destroys or damages property during a public disorder will face imprisonment of up to 7-years. But if he/she does this by means of a fire or explosive, the maximum penalty is 12-years imprisonment.

To be guilty of destroying or damaging property, the police are required to prove:

1. That the accused person destroyed or damaged someone’s property; and
2. That the accused person did this intentionally or recklessly.

A person is considered to do this ‘recklessly’ if he/she was aware that the kind of harm caused might be caused at the time of his/her actions but continued with those actions anyway.

Common defences to this charge include a situation where the property is your own, and not partly anyone else’s. Other defences include necessity or duress when committing the crime, or where there was an intervening act that caused the damage or destruction.

Generally, under the law, ‘damage or destroy’ is where conduct causes the physical integrity of the property to be altered in such a way that it causes it to be either temporarily or permanently inoperable.

However, as the High Court decision of Grajewski v DPP (NSW) [2019] HCA 8 outlines, that the interference with the functionality of the property itself does not necessarily constitute damage without physical harm or derangement to it.

Click here for a summary of Grajewski’s High Court case of what is ‘damage’ under the law.

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