Arson and Bushfire Offences and Penalties in South Australia (SA)

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Arson of structures and bushfires is a serious crime in South Australia. If convicted of arson, the maximum penalty is life imprisonment, while igniting a wildfire carries a 20-year sentence of penal servitude.

To convict someone of arson or bushfire charges, the prosecutor must show that an explosion or flame was produced, that property, such as homes or vehicles, was damaged, and that the accused violated the property by deliberately or carelessly setting it ablaze.

Arson and bushfire offences are a serious criminal offence. If there is a conviction in the court, the offence will show up on a Nationally Coordinated Criminal History Check.

Legal Definition of Arson in South Australia (SA)

According to the Oxford dictionary, arson is a felony act of intentionally setting fire to public or private property. In South Australia, no considerable difference is considered between provoked or elementary arson. The defendant can be charged for the offense of arson under section 85(1) of the Criminal Law Consolidation Act 1935 (SA). The accused will be considered guilty of damaging property by way of explosion or fire if they don't present any legal explanation for their actions or if the state / lawyer demonstrates they started the flames purposefully to vandalise property.

By threatening to vandalise another individual’s property through arson, the prosecution can demonstrate that the request is for arousing fear and that you can carry out the threat. Under section 85(4) of the Act, the defendant can be convicted of an aggravated offense by threatening to burn property with a severe punishment of 15 years maximum.

If an explosive is used as a source of fire, the individual who uses an incendiary device without legal authorisation is charged with an arson offense as per section 83N with a maximal penal servitude of 20 years.

What makes up an arson offense

In South Australia (SA), arson is bound by section 85(1) of the Criminal Law Consolidation Act 1935 (SA). Accused individuals are charged per the same act, and convicts serve a heavy sentence of life incarceration. But for the accused to earn a guilty verdict, the prosecution must meet all the six arson elements and prove that the accused is responsible for starting the fire.

• The first element: Did the accused individual destroy or vandalise the said property, where property means personal or real property of tangible nature. According to the Australian Law Reform Commission, the term property can be interpreted to mean many things, especially in arson related offences.
• The second element: This element demands that the property be owned by someone other than the accused. Or, the accused was a co-owner with another individual. Arson may be committed by a suspect in order to obtain or share ownership of property.
• The third element: According to section 85(1) of the Criminal Law Consolidation Act 1935, the accused intended to destroy or vandalise property. The law would acknowledge arson only if either the defendant purposely or among one of their purposes were to destroy or vandalise property or believed their conduct would likely lead to the same result.
• The fourth and fifth elements: These two elements are what separates arson from criminal damage. The property was vandalised or destroyed by explosions or fire, and the accused individual intended to use fire to destroy or vandalise the property.
• Element six: The last element is if the defendant does not have a lawful excuse for their criminal actions. There is an available list of legal reasons listed in the Criminal Law Consolidation Act 1935.

Possible defences for arson

In South Australia (SA), the defendant can plead their case against arson by either proving that they had legal grounds to cause damage on the property using fire or explosives. They can also prove that they did not damage the property intentionally and weren't acting recklessly indifferently. Arson in South Australia is prosecuted based on six elements that the accuser’s law team must demonstrate beyond a reasonable doubt if they wish to find an accused individual liable.

Four of these elements are part of "Criminal Damage." If the prosecution focuses on them and establishes the elements to be truthful, the accused may be convicted of the charge. A criminal may escape punishment if the prosecution fails to prove their case. Thus, if the prosecutor fails to confirm even a single element of the arson charge, the accused may be found not guilty of the offence.

To successfully sentence a suspect for any form of arson, the accusing team must satisfy each of these 6 elements beyond any reasonable doubt:

• Was the property destroyed or vandalised? This must be in line with South Australia’s law's strict definition of arson.
• Can the thing that got destroyed or vandalised be categorized as property for the Criminal Law Consolidation Act 1935?
• Is the property in question owned by the accused and another person, or is it entirely owned by someone else?
• The prosecution must demonstrate that the accused individual intended to damage or destroy the property. It must also prove that the accused knew their actions were more likely than not to result in destructed or damaged property.
• Can the prosecution prove that the accused precisely planned to vandalise or destroy the property through fire or explosions? Was it an accident?
• Does the accused individual have a legal explanation for the actions, such as believing the property solely belongs to the defendant? Maintain they were authorised to engage in the felony, or the defendant believes it was necessary to start a fire to save the product.
• Did the accused believe the owner permitted the vandalisation or destruction of the property?

The legal definition of a bushfire offence in South Australia

Bushfires, also known as wildfires, are natural phenomena in the Australian landscape due to dry vegetation and hot weather. It is a fire that burns or is capable of burning out of control bringing damage to vegetation. On some occasions, wildfires can be the result of an individual intentionally starting the fire.

In South Australia, it is a criminal offense to initiate a wildfire, according to section 85B of the Criminal Law Consolidation Act 1935. If someone causes a wildfire and the goal is to spread the flames or to be rashly apathetic to whether your actions start a wildfire, you can be convicted for the offence of starting a bushfire under section 85B.

If charged, there is no difference if you committed elementary or provoked arson, with the offense attracting a heavy sentence of life in prison. As per section 124 of the Sentencing Act 2017 (SA), the defendant must pay compensation for any injury, loss, or damage resulting from the vandalism upon being convicted of the wildfire offence. However, the court might pass a less severe punishment if the accused is below 16 years old, the court is convinced that the accused cannot afford to finance the compensation, or it’s satisfied with the exceptional circumstance that existed for the offense to occur.

Possible defence for wildfire arsons

Wildfire arson accounts for half of all national bushfires in Australia and is among the costliest crimes in the country. It is a complex, multi-faceted issue that has more varied motives and less knowable consequences. But sometimes mistakes happen, and you end up starting a bushfire. If that's the case, there are two defence paths you can take to yourself against a bushfire charge. Just like an arson offense charge, you can prove your innocence through the following:

• Lawful Excuse: If the defendant has a legitimate legal explanation for starting a wildfire, no offence will be considered as long as the fire only destroys herbage or assets on both or either of the following:
1. The property of the individual who started the fire,
2. The property of the individual who agreed or authorised to the act of the individual who caused the bushfire,
3. The wildfire results from actions earnestly aimed at managing, warding off or smothering a wildfire.
• Intentions: When a defendant establishes that they did not start the fire or intend to start one, they may petition the court to dismiss all charges. This is permissible if the accused can demonstrate that no reasonable person could have anticipated such outcomes under the circumstances. To avoid conviction, the defendant must additionally show that they were neither careless or negligent in any way.

If you are a victim of bushfire, you can look for bushfire legal help programs in South Australia that get funding from the Commonwealth and State government. They offer the services for free to assist eligible individuals, primary producers, and small businesses that require bushfire legal assistance.

While structural arson and bushfire arson may seem to be the same, the motivations for each crime appear to be distinct, necessitating a need to treat the two offences separately. Over the last decade, South Australia's legal definition of arson has recognised the distinction between vegetation and structure fires.

In Australia, arson is now defined in two ways; the first is intentionally destroying property with fire. This is directed against structural arsonists. The second is intentionally igniting a fire regardless of the repercussions, which mainly covers the activities of bushfire arsonists.

The characteristics of many arson crimes are based on the activities of recognised and convicted arsonists who account for around 1% of arsonists. It is also based on studies of correlations between geographical effects on ignitions and the social class descriptions of the surrounding population. Attempts to establish a unified legal framework for arson have been unsuccessful, with over 60 statutes addressing bushfire arson crimes.

Will an Arson or Bushfire conviction show up on a nationally coordinated criminal history check?

If an individual is convicted for the offence of Arson or igniting wildfires, the offence will show up as a disclosable court outcome (DCO) on the results of their nationally coordinated criminal history check.

Individuals can obtain a national police check online via the Australian National Character Check - ANCC® website.

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