Clarity Law

Arson is a serious criminal offence in Queensland, carrying significant penalties. If someone is charged or accused of arson in Queensland it’s crucial to comprehend the law around arson charges, the elements of the offence, and the potential consequences for offenders. In this article, we delve into the specifics of arson law in Queensland, providing essential information for those facing this charge.

What constitutes arson?

Arson involves the wilful and unlawful act of setting fire to various types of property. These include:

• A building or structure

• A motor vehicle, train, aircraft, or vessel

• Stacks of cultivated vegetable produce or mineral/vegetable fuel

Examples of arson scenarios:

• Setting fire to a house

• Setting fire to a car

• Setting fire to a door to a unit

• Setting fire to a chair in a house

• Setting fire to a business to collect on the insurance

• Setting fire to a boat

What does the law say?

Section 461 of the Criminal Code sets out the charge of arson as:

(1) Any person who wilfully and unlawfully sets fire to any of the things following, that is to say—

(a) a building or structure;

(b) a motor vehicle, train, aircraft or vessel;

(c) any stack of cultivated vegetable produce, or of mineral or vegetable fuel;

(d) a mine, or the workings, fittings, or appliances of a mine;

is guilty of a crime, and is liable to imprisonment for life.

(2) It is immaterial whether or not a thing mentioned in subsection (1) (a) or (b) is complete.

Elements of the offence

To secure a conviction for arson, the prosecution must prove:

1. The accused set fire to the property; and

2. The act was wilful; and

3. The defendant did so unlawfully.

Looks look at those elements in more detail.

The accused set fire to the property

There must be some actual damage caused by the fire. It is not enough that the accused was going to set fire to the property, a fire must have started.

It is however not required that the whole property is destroyed, merely that some component of the property is damaged by fire. It is also not a requirement that the property was complete, it is still an offence if say the property was a house and it was only half completed.

The act was wilful

The act of setting fire to the property must be intentional or acting with indifference to the likelihood of a foreseen result occurring. In R v Lockwood; ex parte Attorney-General the court specifically found that that the word “wilfully” applies to an accused person who deliberately did an act (that is, that it was a willed act) aware at the time he did it, that the result, i.e. a fire was, the likely consequence of his act and that he recklessly did the act regardless of the risk.

If at the time of the arson the accused was intoxicated this may, depending on the level of the intoxication, mean the accused could not have formed the necessary intent to damage the property.

The defendant did so unlawfully

It is immaterial whether the person had lawful possession of the property at the time of the arson or indeed owned or part owned the property.

If an accused has a valid defence then the offence cannot be unlawfully.

Defences to arson

Defences against arson charges may include:

• Lack of intent

• Lawful reasons for setting fire

• No actual property damage

• Accident

• Intoxication

• Mistake

• Identification

• Necessity

Which court hears the matter?

The matter will start in the Magistrates Court closet to where the alleged arson occurred. The charge is however too serious for the Magistrates Court to determine and will therefore ultimately be finalised in the District Court.

Penalties and sentencing for arson

Arson carries a maximum penalty of imprisonment for life. The most likely penalty will be a term of imprisonment between 19 and 48 months.

However the penalty depends on a number of factors including;

• The sentencing principles in the Penalties and Sentences Act;

• Relevant case law (previously decided cases);

• the maximum penalty of the offence;

• the penalty submissions made by the prosecution;

• the penalties submissions made by the defence;

• the personal circumstances of the defendant;

• the circumstances of the offence;

• any victim impact statement;

• the impact the offence had on an individual or the public generally;

• how much planning went in the arson offence

• the value of the property destroyed by the fire

• If any person was injured by the fire

• any time in custody the defendant has already served before the sentence and;

• the criminal history of the defendant.

Don’t try and guess what a penalty may be or rely on google searches, contact an expert criminal lawyer who can properly advise you on a potential sentence and if any defences exist.

See out article on How Does the Court Set a Prison Sentence?

See also the Queensland Sentencing Advisory Council for details of the sentences for arson that have been imposed in the past.

Can the charge be withdrawn?

Depending on the circumstances it may be possible to negotiate the charge with the prosecutor. This is called case conferencing. For example it might be possible to try and convince the prosecutor that the element of the charge aren’t made out or the defendant has a defence and therefore the charge should be withdrawn.

We once acted for a client charged with arson. He was found near a burning car with clothes the police described as smelling strongly of smoke. We were able to have the charge withdrawn as we argued they did not have enough evidence to convince a jury that it was our client who committed the arson.

Will I get a criminal conviction if I plead guilty to the charge?

The answer in almost all cases will be yes.

Only an experienced criminal lawyer can give you advice on the best way to try and avoid a conviction being recorded if you plead guilty to this charge. Note however if imprisonment is part of the penalty, as it almost always is for arson charges, then a conviction must be recorded.

The police want to talk to me about an arson charge

Never ever give an interview to police without first getting legal advice. Even if you are innocent, even if you have a defence you could say the wrong thing and virtually guarantee you will be found guilty of the charge.

The police are not on your side, get immediate legal advice before talking to police and if you can’t get that legal advice don’t talk to the police.

Learn more about your right to silence.

FAQ

Q: Can an accidental fire be considered arson?

A: No, arson requires wilful and unlawful intent. Accidental fires do not fall under this category.

Q: What if the accused was mentally impaired?

A: If the accused lacked the capacity to understand their actions due to mental impairment, it may be a valid defence.

Q: Is arson treated differently for juveniles?

A: Yes, age-related factors play a role. Juveniles (under 18) will have different legal considerations and a different sentences law.

How do I get more information or engage you to act for me? 

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If you don’t engage us that fine too, at least you will have more information on the charge and its consequences.