The bushfire season is off to a cracking start this year. With dry, windy conditions there have been multiple suspicious fires on the South Coast and the arrest of young girls on the State’s mid North Coast. Bushfires are dangerous when out of control, they can destroy thousands of hectares of habitat as well as destroying homes and lives. The penalties for lighting bushfires have recently been increased in a move welcomed by firefighters but not by the New South Wales Law Society.

With the grass crunching under foot and lantana losing its leaves, the Bushfire Season on the South Coast has started almost two months ahead of the usual 1 October deadline. As the big dry continues the lack of rain is likely to see the fire season for Greater Sydney brought forward to 1 September. The exceptionally dry conditions and below average rainfall means a greater risk for us all.

Check with your Local Government Area before you burn off as in some places, permits are already required.

Recently the penalties were increased providing for up to 21 years in gaol with a Standard Non Parole Period of 9 years for those who deliberately set fires or are reckless as to the spread of fire.

Despite this, people are still lighting fires. Just recently on the NSW  North Coast two girls were charged with lighting fires, as were some young boys on the State’s south coast. The children will be dealt with by the Children’s Court but the reality is, bushfires take lives and property and utilise a huge amount of resources. Fire setting is on the increase, with increased risk to responders and civilians alike. After the 2018 review of the legislation, legislators are getting tougher on firebugs.

The Law

An offence of Starting a Bush fire (Arson) is what is known as a “Table 1” offence under the relevant legislation, which means it is to be dealt with in the Local Court unless an election is it is to be dealt with on indictment by the Department of Public Prosecutions (DPP).

The offence of lighting bushfires is contained within section 203E of the Crimes Act 1900. In the Local Court the offence carries up to two years gaol, but penalties recently increased to maximum of 21 years gaol in the District Court, for a deliberately lit fire that spreads onto Crown land or the land of another; and where the lighter of the fire is reckless as to the potential for the spread. It carries a minimum 9 years standard non-parole period. The scary thing is, there is no requirement for damage, merely the intention to light the fire and the recklessness as to its control. The Spread of fire in proved merely by proving intention.

Pursuant to section 203D of the Crimes Act 1900 NSW  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.

‘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).

However, a person is not guilty of the offence if they are ‘a firefighter or acting under the direction of a firefighter’ and they ‘caused the fire in the course of bushfire fighting or hazard reduction operations.’

The section further provides that a person who is acquitted of the offence may alternatively be convicted of an offence under section 100(1) of the Rural Fires Act 1997 (NSW). That section makes it an offence to set fire to land or property belonging to someone else, or to fail to prevent a fire spreading to that land or property, without lawful excuse. This offence is available as a statutory alternative in the event that a person is charged with the specific bushfire offence under 203E of the Crimes Act 1900 and that offence is not made out.

The offence does not require a specific state of mind or any intent or negligence. It merely requires the lighting of a fire which escapes certain land in certain circumstances.

If someone dies as a result of a fire you are accused of setting, it is possible you will be charged with manslaughter or even murder which carries up to 25 years gaol. To read more about our previous blogs on this topic, click here.

Child arsonists have further penalties available in keeping with the rehabilitative aims of Parliament and society.

If you are charged with lighting a bushfire or letting fire escape

Most bushfire offences are dealt with by way of a plea but the penalties remain as serious and potentially life changing as fire damage.

If you are charged with lighting a bushfire, then National Criminal Lawyers will provide you with an experienced lawyer to provide timely advice and help you navigate the legal minefield. We have access to the best lawyers, barristers and mental health professionals to help us help you, whether you want plead guilty or to run a defended hearing.

To read more about the offence of starting a bush fire, click on this link.

If you or someone you know has been charged with this offence contact us now for an appointment.

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