Criminal Law

What makes arson an offence?

Published in: September 2017

Setting fire or causing damage to a building is an offence known as arson. There are many elements associated with arson that this piece will cover.

All jurisdictions in Australia makes arson an offence, such as s 197 of the Crimes Act 1900 (NSW), and s 197 of the Crimes Act 1958 (VIC) to name two examples. Turning to case law, we can look to Gardenal-Williams v The Queen (1989) Tas R 62; 43 A Crim R 29, where Neasey J said (at 75; 35-36):

“In arson, the “act” is, for example, holding a lighted match so that the flame comes in contact with combustible material, or throwing a lighted brand into such material, or any other such act which can have the effect of setting fire to something. The consequences, of course, is that something is set on fire; in the case of arson, a building erection or structure attached to the soil, or a stack of timber etc.”

Arson and intent

Neasey J in Gardenal-Williams v The Queen looked to Kenny’s Outlines of Criminal Law in relation to intent, with his Honour citing the following passage:

“For if a man mischievously tries to burn some chattels inside a house, and sets fire to the house thereby, this is not an arson of the house if (as will, of course, rarely be the case) it appears from evidence that he neither intended nor foresaw the possibility of the house’s catching fire. For it is essential to arson that the incendiary either should have intended the building to take fire, or, at least, should have recognised the probability of its taking fire and have been reckless as to whether or not it did so. The cases emphasise that this test of liability is subjective.”[1]

Consent to an act of arson is not a defence

In R v Johnston (2006) 208 FLR 35 (ACT, Marshall J), the accused had set fire to his own property. Marshall J held that consent to damage was not applicable, and his Honour said (at 44-45 [46]):

“Given the obvious public interest considerations stemming from the natural damage that could flow to firefighters, neighbours and other properties from such action, described in the section as “arson”, I do not consider that s 409 contemplates a situation where a person gives consent to anyone to damage property by fire. I am fortified in this view by the explanatory memorandum which accompanied the bill which led to the enactment of the Criminal Code:

An important distinguishing feature of the arson offence is that it is not limited to causing damage to the property “belonging to someone else”. It can also apply to owners who damage or destroy their own buildings or vehicles by fire or explosives.”


When sentencing an accused for an offence of arson in R v Mazur (2000) 113 A Crim R 67 (Vic CA), Winneke P said (at 74 [27]):

“[C]ourts imposing sentences for offences of arson will, except in the most exceptional circumstances, regard a sentence of immediate imprisonment as being appropriate.”

[1] Kenny’s Outlines of Criminal Law (19th ed, 1966), JWC Turner (ed), p. 239.

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