Australia: Intentionally or recklessly destroying or damaging property in NSW

It has been reported that at 1.25am on 7 July 2020, a report was received by NSW emergency services that a fire was engulfing a barber shop in Burwood, in Sydney's inner western suburbs.

According to the report, a silver or grey vehicle reversed into the front of the shop before a male exited, entered the shop for a period of time, then got back into the car and left the scene.

A second silver or grey vehicle was also allegedly seen fleeing the scene.

The shop is said to have suffered extensive damage but, fortunately, no persons were inside the at the time.

Investigations are continuing.

The criminal law in New South Wales contains a range of offences which prohibit causing fires without lawful authority.

The offence of  "causing a bushfire" is contained in s 203E of the Crimes Act, which says that you may be charged with this offence if you deliberately cause a fire, and you are reckless as to whether that fire may spread to vegetation or public or private land.

However, you will not be charged with an offence under this section where you started the fire under the direction of a fire fighter, or as part of your employment as a fire fighter, or where you caused the fire in the course of "hazard reduction operations" – i.e. back burning.

Because of the serious consequences that may result from bushfires, the maximum penalty for this offence is 25 years imprisonment.

Section 100(1) of the Rural Fires Act 1997 (NSW) outlines the crime of deliberately lighting fires, mandating a maximum penalty of five years' imprisonment and/or a fine of $11,000 for any person who, without lawful authority:

• sets fire or causes fire to be set to the land or property of another person, the Crown or any public authority, or
• being the owner or occupier of any land, permits a fire to escape from that land under such circumstances as to cause or be likely to cause injury or damage to the person, land or property of another person or the land or property of the Crown or a public authority.

The law also says that setting a fire when there is a total fire ban is to be considered an aggravating factor when sentencing, prescribing a maximum penalty of seven years' imprisonment and/or a $120,000 for any person who commits an offence "knowing" there is a total fire ban in place.

This legislation also makes it clear that any person who, "without lawful authority, leaves (temporarily or otherwise) any fire they have lit or used in the open air before the fire is thoroughly extinguished is guilty of an offence." This attracts a maximum penalty of 12 months in prison and a fine of $5,500.

It's important to note that if a person actually dies as a result of a deliberately lit fire, then the offender could be charged with other serious offences such as manslaughter.

Under  section 195 of the Crimes Act 1900 (NSW), a person commits an offence if they intentionally or recklessly destroy or damage property belonging to another person. The maximum penalty for this offence where the damage is caused by fire, is imprisonment for ten years.  If you commit this offence while in the company of others, the penalty increases to 11 years.

Furthermore, if you commit this offence during a 'public disorder' (such as a riot or violent protest), the maximum penalty is 7 years imprisonment.

If you use fire or explosives to deliberately or recklessly destroy or damage property that belongs to someone else during a 'public disorder' (such as a riot or violent protest), the maximum penalty is 12 years imprisonment.

Section 196 of the Crimes Act sets out the offence of destroy or damage property with the intention of causing injury to another person.

This offence is punishable by a maximum penalty of 14 years if the damage is caused by fire (or 16 years if it is done during a public disorder).

Under Section 197 of the Crimes Act a person commits an offence if they dishonestly  destroy or damage property by means of fire.

This offence is punishable by a maximum of 14 years imprisonment (or 16 years if it done during a public disorder). This offence also includes a provision for circumstances where property is deliberately damaged in order to commit insurance fraud.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.