What are the Penalties for Deliberately Causing a Bushfire?

By Sahar Adatia and Jimmy Singh.

In February 2019, a teenage boy was charged over deliberately setting fires to Perth bushlands on two occasions the previous month.

On 9 January, at around 4pm, the boy allegedly set fire to scrub off Burns Beach Road in Currambine.

The fire was quick to spread and came close to homes before being extinguished by the Department of Fire and Emergency Services.

Arson squad detectives also allege that less than two weeks later, on 20 January, the 16-year-old intentionally set fire to nearby scrub in Caledonia Park, also in Currambine.

Again, on this occasion, the fire rapidly spread and threatened neighbouring homes, all before firefighters were called out to dowse the blaze.

The teenager was charged with two cunts of wilfully lighting or causing to be lit a fire likely to injure or damage.

Understanding Arson and Intent

The Australian Institute of Criminology advises that arson is understood as “the act of intentionally and maliciously destroying or damaging property through the use of fire”. Four components underpin this definition:

• The lighting of fire – fire being the fundamental component of arson;
• Intention or wilfulness – for arson to occur there must be an intention or wilfulness to do it. This does not include fires that are started by natural causes or accidents;
• Malice – for arson to occur, there must be a malice. This does not include fires started intentionally with positive or legitimate intent; and
• Property – for arson to have occurred, there must be some kind of property or object that is burned.

The element of intent is central to the characterisation of arson.

Why Do People Deliberately Light Fires?

According to Dr James Donnelly, a lecturer in psychology at the Southern Cross University, there are typically three sorts of fire-lighting behaviour. These are, arson, fire-setting and pyromania.

Dr Donnelly advises that arson is a crime of violence, usually involving financial gain or revenge. In fact, it is “almost like being a hitman”.

“Someone wants to burn down their building for insurance purposes, where they want to pay someone back, where they want to eliminate competition in the neighbourhood.”

In comparison, fire-setting, which is often confused with arson, is a behaviour more typical in children and adolescents.

Dr Donnelly advises that fire-setting often begins with young children who are intrigued by fire, and says parents should be vigilant.

“Around the house if you see burned matches or see the child playing with candles or building little fires outside, be very proactive about it, because even with children, punishing them doesn’t necessarily make the fascination go away.”

He also recommends children be educated early to understand that they have responsibilities to take care of fire.

Meanwhile, Dr Donnelly refers to pyromania behaviour as a complex mental disorder and one that is difficult to diagnose in the early stages.

“We don’t really know how to identify it early on, other than the person is setting fires,” he states.

“If it starts in childhood it doesn’t go away by itself, it really requires treatment.

“They really need to get some cognitive behavioural therapy, they need to get some psycho-education around the issues and try to understand other ways of dealing with that tension.”

NSW Increases Penalty for Arson

In November 2018, the NSW Parliament passed laws which saw an increase to the maximum penalty for being reckless as to whether a fire you created spreads to public land or the private land of another person. This went from 14 years in jail to 21 years in jail.

In a press release highlighting the NSW Parliament’s commitment to putting community safety first, Attorney General Mark Speakman claimed introducing Australia’s toughest penalty for bushfire arsonists proves the government is serious about “improving the criminal justice system”.

“We have listened to the community and made changes that send a clear message to would-be offenders, providing courts with the authority to impose stronger penalties for offences that put safety at risk,” Mr Speakman stated.

“This fire season is expected to be one of the most challenging the State has experienced. The deliberate lighting of bushfires has the potential to cause catastrophic damage, even death. Arsonists are on notice the maximum penalty for this offence will rise from 14 years to 21 years imprisonment.”

The Law and Penalties for Causing a Bushfire in NSW

Anyone guilty of an arson charge, also known as causing a bushfire, under section 203E Crimes Act 1900 (NSW) will be left to face a maximum penalty of up to 21-years jail.

To be guilty of causing a bushfire under this charge, the prosecution must first prove each of the following elements of this crime beyond reasonable doubt:

1. You intentionally caused a fire; and
2. At the time of doing this, you at least realised the possibility that it would spread to someone else’s land or public land.

However, it is a defence to this charge if the person who caused a fire was a firefighter or someone acting under a firefighter’s directions which as a result caused the fire in the course of a bushfire fighting or hazard reduction operation under section 203E(3) Crimes Act 1900 (NSW).

‘causing a fire’ includes maintaining a fire, lighting a fire, or even failing to contain one (except if it was lit by someone else or where its got to a point that it’s beyond the control of the person who lit it).

The word ‘spread’ in respect to a fire is also defined under the law to mean the spread of a fire beyond the capacity of the one who caused the fire to extinguish it (section 203D Crimes Act 1900 (NSW)).

Anyone who is found not guilty of this charge can still be guilty of setting or causing a fire to be set to land or property under section 100 Rural Fires Act 1997 (NSW).

Anyone guilty of section 100 Rural Fires Act 1997 (NSW) will face a penalty of up to $110,000 and/or up to 5-years imprisonment.

Our previous blog provides a more detailed outline on setting or causing fire to property or land offences under section 100 Rural Fires Act 1997 (NSW).

Setting fire to land or property can also land you in a charge of damaging or destroying property under section 195 Crimes Act 1900 (NSW). This says that anyone guilty of intentionally or recklessly destroying or damaging property of another person will face a maximum penalty of up to 10-years imprisonment if the damage or destruction was caused from a fire or explosive.

The penalty for this increased to a maximum penalty of up to 11-years imprisonment if it was done in the company of someone else under section 195(1A) Crimes Act 1900 (NSW).

Call us if you have a question. We are available 24/7 with criminal defence lawyers in Sydney and 7 other locations across NSW.

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