Arson and bushfire offences in NSW.

What counts as arson in New South Wales?

There is no offence in the Crimes Act 1900 (NSW) that is actually called arson. The word is a label for the fire versions of the property damage offences in Part 4 of the Act. When a fire is deliberately lit and property is damaged, the charge is destroying or damaging property by means of fire under section 195. The same conduct can be charged more seriously if the person meant to injure someone, meant to endanger life, or lit the fire to make a dishonest gain.

The core offence has two elements. First, that the accused destroyed or damaged property belonging to another person. Second, that they did so by fire, either intending to cause the damage or being reckless as to whether the damage would occur. Damage is read broadly. A scorched wall, a burnt fence, a gutted car, and a razed shed all qualify. The fire does not need to destroy the whole thing.

Bushfires are treated separately. Section 203E creates a standalone offence of causing a bushfire. It targets fire that spreads to vegetation, rather than damage to a building or a vehicle. The two offences often overlap in practice, and police will sometimes lay both.

What is the penalty for arson in NSW?

The penalty depends on which fire charge is laid. The offences form a ladder, and the maximum climbs sharply as the intent behind the fire becomes more serious.

Section 195, destroy or damage property by fire. Ten years imprisonment. If the fire is lit in the company of others, the maximum rises to 11 years. If it is lit during a public disorder, such as a riot, the maximum is 12 years.

Section 196, damage by fire with intent to injure a person. Fourteen years imprisonment, rising to 16 years if committed during a public disorder. The Crown must prove the fire was lit with the intention of causing bodily injury to someone.

Section 197, dishonestly destroy or damage property by fire. Fourteen years imprisonment. This is the insurance fire. It applies where a person lights the fire with a view to making a gain for themselves or another, or causing a loss to someone else. The classic example is burning an insured business or car to claim the payout.

Section 198, damage by fire with intent to endanger life. Twenty five years imprisonment. This is the most serious fire charge in the Act. It applies where the person intended, by the fire, to endanger the life of another. A house fire lit while people are known to be inside is the clearest example.

Not every fire charge is a District Court matter. A section 195 charge where the value of the damaged property is under the statutory threshold can be finalised in the Local Court, where the maximum penalty is two years. Which court hears the matter has a large effect on the sentence a person is exposed to, so the jurisdiction question is one of the first things we look at.

What is the offence of causing a bushfire?

Section 203E is the bushfire offence. A person is guilty if they intentionally cause a fire and are reckless as to its spread to vegetation on public land or on land belonging to another. The maximum penalty is 21 years imprisonment. Parliament raised it from 14 years to 21 years in 2018, a change that reflects how the courts and the community view fires that threaten life, homes, and the environment.

The fault element is split. The lighting of the fire must be intentional. The spread of the fire only has to be reckless. A person who deliberately lights a fire and foresees that it might spread to bushland, but lights it anyway, is caught. They do not need to want the fire to spread.

The section carries a built in protection for firefighters. A person is not criminally responsible if they are a firefighter, or acting under the direction of one, and they caused the fire in the course of firefighting or hazard reduction. Prescribed burns and back burns are lawful. The offence is aimed at fires lit without that authority. Section 203E is strictly indictable, which means it is always dealt with in the District Court.

How do police prove an arson or bushfire charge?

Fire destroys the evidence of how it started. That makes these cases hard to prove and, for the defence, often winnable. The Crown has to establish three things beyond reasonable doubt: that the fire caused the damage, that the accused was the person who lit it, and that they did so with the required state of mind.

The first element is usually the province of a fire investigator. The investigator examines the point of origin, the burn patterns, and any trace of an accelerant such as petrol. The finding that a fire was deliberately lit, rather than caused by an electrical fault or a discarded cigarette, is an expert opinion that can be tested. A defence expert who reads the same scene differently can put the whole prosecution in doubt.

Identity is often the weak point. Fires are lit at night, away from witnesses, by a person who does not want to be seen. The Crown case is frequently circumstantial. It is built from CCTV near the scene, mobile phone location data, motive such as a grudge or a claim on an insurance policy, and evidence of the accused buying fuel or being seen nearby. Each strand is arguable.

The state of mind is proved by inference from the conduct. Recklessness in this setting means the accused foresaw the possibility that their act would cause the fire or the damage and pressed on regardless. It is a lower bar than intention, but the Crown still has to prove actual foresight, not merely that a reasonable person would have seen the risk.

What are the defences to a fire charge?

Accident is the complete answer. If the fire was not intended and the accused did not foresee the risk of it, there is no offence. A cooking fire that gets away, a cigarette that was not properly put out, or a spark from machinery is not arson. The Crown carries the burden of excluding an innocent explanation.

Identity is the other main battleground. Because the case is so often circumstantial, a defence that the Crown cannot place the accused at the scene, or cannot exclude someone else, can be enough to raise a reasonable doubt. For a section 203E charge, the firefighter and hazard reduction exception is a full defence where it applies.

Mental health runs through many fire cases. Some fires are lit by people in the grip of a serious mental illness. Where that is the case, a mental health defence, or a diversion under the mental health provisions, may be open. It is a question for careful assessment on the facts and the psychiatric evidence.

How do courts sentence fire offences?

The courts treat deliberately lit fires severely. General deterrence carries real weight, because fire is dangerous, unpredictable, and capable of causing loss out of all proportion to the act that started it. Full time custody is common for an established arson or bushfire, even for a first offender. The Judicial Commission Sentencing Bench Book collects the leading decisions and the principles the courts apply.

The objective seriousness of the fire drives the sentence. The court weighs the value of what was destroyed, the risk to human life, whether the fire was planned, and the offender's role. The aggravating and mitigating factors in section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) then apply, alongside the offender's subjective case. We set out how those factors work in our note on section 21A.

Mental illness, an early plea, youth, and genuine remorse all pull the other way. A person who pleads guilty at the first opportunity receives a discount of up to 25 per cent for the utilitarian value of the plea. The NSW Sentencing Council has published a review of fire offences that surveys how these sentences fall in practice.

What we do for a person charged with a fire offence.

The first task is bail. A fire charge is not automatically a show cause offence, but police often refuse bail and the matter is decided by a court under the unacceptable risk test. We prepare the release application from the start. Our note on show cause and bail explains how that argument is run.

The next task is the brief. In a fire case the four documents that matter most are the fire investigator's report, the CCTV, the phone data, and any statement the accused gave police. Each is tested. A weakness in the origin finding, a gap in the identification, or a phone record that does not put the accused where the Crown says, can turn the case. Where the evidence is strong, the work turns to the plea, the psychiatric material, and the sentence. Fire cases are among the most defensible serious matters when they are worked properly from the brief up.

Frequently asked.

Is arson a criminal offence in Australia?

Yes. Every state and territory punishes deliberately lit fires. There is no single offence called arson in New South Wales. The conduct is charged under the fire versions of the property offences in the Crimes Act 1900 (NSW), mainly section 195, and under section 203E for bushfires.

What is the maximum penalty for causing a bushfire in NSW?

Twenty one years imprisonment under section 203E of the Crimes Act 1900. The maximum was raised from 14 years to 21 years in 2018. The offence is strictly indictable, so it is dealt with in the District Court.

Can you be charged with arson if no one was hurt?

Yes. Damage to property by fire is enough for a charge under section 195. Injury to a person is not required. If a person is hurt, or the fire was lit with intent to injure or to endanger life, the charge lifts to section 196 or section 198, which carry higher maximum penalties.

Does a fire charge go to the District Court?

Causing a bushfire under section 203E is strictly indictable and goes to the District Court. Destroying or damaging property by fire under section 195 can be dealt with in the Local Court where the value of the damage is small and neither the prosecution nor the accused elects to go to the District Court. The more serious fire charges are heard in the District Court.

What is the difference between doing it intentionally and recklessly?

Intention means you meant to cause the fire or the damage. Recklessness means you saw the risk that your act would cause the fire or the damage and went ahead anyway. Section 195 is made out on either state of mind. A true accident, where there was no intention and no foresight of the risk, is not an offence.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 4 July 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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