Clarity Law

Queensland has instituted various laws to protect individuals' rights and privacy. Section 227A of the Criminal Code addresses the serious offence of making observations or recordings in breach of privacy. This provision aims to safeguard individuals from invasive and unwarranted surveillance, reinforcing the importance of privacy in the digital age.

 https://youtu.be/FQuJzno4Tlk

Understanding Section 227A

Section 227A - Observations or Recordings in Breach of Privacy specifically targets the act of making observations or recordings without consent, infringing upon an individual's right to privacy. The provision encompasses a range of activities, including but not limited to, photographing, filming, or recording someone without their knowledge or consent in situations where they have a reasonable expectation of privacy.

What does the Law say?

Section 227A(1) sest out that:

A person who observes or visually records another person, in circumstances where a reasonable adult would expect to be afforded privacy—

(a) without the other person’s consent; and

(b) when the other person—

(i) is in a private place; or

(ii) is engaging in a private act and the observation or visual recording is made for the purpose of observing or visually recording a private act;

commits a misdemeanour.

In addition a separate offence is set out in section 227A(2)

A person who observes or visually records another person’s genital or anal region, in circumstances where a reasonable adult would expect to be afforded privacy in relation to that region—

(a) without the other person’s consent; and

(b) when the observation or visual recording is made for the purpose of observing or visually recording the other person’s genital or anal region;

commits a misdemeanour.

Elements of the Offence

For a charge under Section 227A to be established, several key elements must be satisfied:

1. Observations or Recordings:

   • The accused must have engaged in the act of making observations or recordings. This can involve visual surveillance, such as taking photographs, as well as audio recordings without the subject's consent.

   • “Observe” is defined as observe by any means.

   • “Visually record a person” means record by any means, moving or still images of the person or part of the subject.

2. Lack of Consent:

   • The observations or recordings must have occurred without the explicit consent of the individual being observed or recorded. Consent is a critical factor in determining the legality of such actions.

   • Consent” must be freely and voluntarily given by a person with the cognitive capacity to give the consent.

3. Reasonable Expectation of Privacy:

   • The person being observed or recorded must have had a reasonable expectation of privacy in the given circumstances. For instance, activities within private spaces like homes, backyards or washrooms typically carry a higher expectation of privacy than public spaces.

   • It comes down to the test of whether a “reasonable adult” could expect to be afforded privacy in all the circumstances.

   • Where the charge is not related to filming the genital or anal region but just that they filmed the other person then that other person must be in either a private place or engaging in a private act and the observation or visual recording is made for the purpose of observing or visually recording a private act.

Examples

Example 1: Beach

Generally, a person at the beach does not expect a high degree of privacy. So a person who films the beach scene as a whole wouldn’t breach the law. However if someone were to specifically film a persons genital or anal region this could be considered a breach of section 227A(2) as this offence does not require the subject to be in a private place.

Example 2: Backyard

Generally, a person in their backyard expects a high degree of privacy. The degree of privacy might be influenced by how many neighbours they have and where the neighbours houses are located. There is however likely not many examples where a person could be filmed in their backyard and this not considered a breach of the law against observations or recordings in breach of privacy.

Example 3: Home

Generally a person in their house expects the very highest degree of privacy. Any filming of someone in their house would breach the law against observations or recordings in breach of privacy.

Which Court will hear the Charge?

The charge of observations or recordings in breach of privacy will be heard in the Magistrates court closet to where the offence occurred.

Penalties

A breach of Section 227A is considered a misdemeanour criminal offence in Queensland. It carries a maximum penalty of up to 3 years in prison.

The severity of the penalties may depend on factors such as

• the nature of the breach

• the extent of the invasion of privacy

• the intention of the accused in doing the filming

• any potential harm caused to the victim

• the age of the victim

• the length of time or the number of times the recording occurred

• the defendants criminal history

• how sophisticated the filming setup was

In most cases a prison sentence will be imposed however the defendant may not have to serve time in prison if the sentence is wholly suspended or if an immediate parole release date is set.

Legal Defences

Defendants charged under Section 227A may explore various legal defences, including but not limited to:

1. Lack of Intent:

   • Demonstrating that the observations or recordings were unintentional or accidental may serve as a defence. Proving a lack of malicious intent can be crucial in such cases.

2. Consent:

   • If the accused can establish that they had obtained valid consent from the individual being observed or recorded, it could serve as a defence against the charges.

3. Public Domain:

   • Arguing that the observations or recordings occurred in a public space where individuals generally have a diminished expectation of privacy may be a viable defence strategy. The law requires that the recordings where done in the situation that that person would expect to be afforded privacy.

   • If the charge was under section 227(1) then proving the filmed person was not a private place or engaging in a private act and the recording was not made for the purpose of observing a private act could be a defence.

Can the charge be withdrawn?

Depending on the circumstances it may be possible to negotiate the charge with the prosecutor. This is called case conferencing. For example it might be possible to try and convince the prosecutor that the filing was excused by law or that there was a valid reason for the filming.

Will I get a criminal conviction if I plead guilty to the charge?

The answer is most likely. It depends on a number of factors. Only an experienced criminal lawyer can give you advice on the best way to try and avoid a conviction being recorded if you plead guilty to this charge. Note however if imprisonment is part of the penalty then a conviction must be recorded.

 Learn more about the difference between a conviction and non-conviction

The police want to talk to me about a observations or recordings in breach of privacy charge

Never ever give an interview to police without first getting legal advice. Even if you are innocent, even if you have a defence you could say the wrong thing and virtually guarantee you will be found guilty of the charge.

The police are not on your side, get immediate legal advice.

Learn more about your right to silence.

I’m not guilty of observations or recordings in breach of privacy

Still don’t talk to the police. A lawyer would require the prosecutor to give them all their evidence and statements. This is known as the full brief of evidence. Once the brief was received then negotiations with the prosecutor to drop the charge can occur.

Learn more about what to do if accused of a crime you didn’t commit.

• I didn’t do it! What to do if Accused of a Crime you didn’t Commit

• Visit our main criminal law website

How do I get more information or engage you to act for me? 

If you want to engage us or just need further free information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you

2. Call us on 1300 952 255seven days a week, 7am to 7pm

3. Click here to select a time for us to have a free 15 minute telephone conference with you

4. Email the firms founder on This email address is being protected from spambots. You need JavaScript enabled to view it.

5. Send us a message on Facebook Messenger

6. Click the help button at the bottom right and leave us a message

We are a no pressure law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission or until we are legally allowed to.

Conclusion

Section 227A of the Queensland Criminal Code - Observations or Recordings in Breach of Privacy serves as a crucial safeguard for privacy rights in the digital age. Understanding the elements of this offence and potential legal defences is essential for those navigating the complexities of criminal law in Queensland. As technology continues to advance, the legal system must adapt to ensure that individuals' right to privacy is upheld and protected.

When a court finds someone guilty of an offence that court has a discretion whether to record a conviction or not. In that case, the Court will consider, according to the provisions of section 12 of the Penalties and Sentences Act, whether or not to do so. If the Court does not record the conviction, then it will not appear on a standard police check.

This short article, however, is more concerned with how long a conviction will stay on your record if a conviction is recorded or in other words when is a conviction “spent” in Queensland?

To find that out, we look at the Criminal Law (Rehabilitation of Offenders) Act 1986.

The rehabilitation period

The act refers to a ‘rehabilitation period’, which means a person need not disclose, or agencies (such as police) must not disclose, a previously recorded conviction after a certain period, as explained below.

How long will a criminal conviction in the Magistrates Court last?

The rehabilitation period for a summary offence, that is, an offence dealt with in the Magistrates Court, a conviction will not remain visible on your record 5 years from the date of the conviction. This is so long as no other offences have been committed in the meantime.

How long will a criminal conviction in the District or Supreme Court last?

The rehabilitation period for an indictable offence, that is, an offence dealt with in the District or Supreme Court, a conviction will not remain visible on your record 10 years from the date of the conviction so long as no other offences have been committed in the meantime.

Will the fact I was sentenced to prison affect the time the conviction remains on my record?

Possibly, a conviction will remain on your record forever if you were sentenced to a term of imprisonment for the offence, with time actually served. Otherwise, where you have been sentenced to a term of imprisonment of 30 months or less.

What exceptions to the normal rules exist?

There are multiple other exceptions however with some listed below:

• A conviction will still appear on your criminal history if relevant for a criminal or civil court proceeding. For example if you go to court for a new criminal charge the court can get access to all your previous convictions.

• If restitution was ordered then if it has not been paid by the time the rehabilitation period ends the conviction remains until the rehabilitation has been paid in full.

• It is likely that it would still be required for you to disclose an excluded conviction if you were to apply for Australian citizenship or a blue card.

• An excluded conviction may still be disclosed if you are seeking admission to a profession, occupation, or calling prescribed by regulation. For example, a lawyer, police officer or corrective services officer.

• All previous convictions would remain in law enforcement databases.

• For commonwealth offences where the sentenced occurred in Queensland the rehabilitation period is 10 years no matter which court heard the charge.

In conclusion, the law allows some scope for prior convictions to be hidden from your record.

I had a conviction 15 years ago and I don’t have to disclose it but I’m applying to be a teacher and the form says I must disclosure all convictions

The law specifies where a person must still disclosure a conviction no matter what. They can include:

• a person applying to be a teacher

• a person applying to be a lawyer

• a person applying to be a police officer

• a person applying for a blue card

You can click here to see the full list.

Can I apply to expunge my conviction early?

No, there is no way to speed up the process and get the conviction removed before the rehabilitation period has ended.

The only rare exception is for people with historical convictions for homosexual offences prior to 1991.

So after the rehabilitation period has ended can I say I was never convicted of an offence?

You can generally say you have no convictions if you meet all the following (see also the exceptions above):

• you weren't sentenced to imprisonment as part of your sentence or you were sentenced to prison for less than 30 months (regardless of whether you actually had to go to prison)

• the rehabilitation period (5 years for Magistrates Court convictions, and 10 years for District and Supreme Court convictions or commonwealth convictions) has expired

• you haven't broken the law since your conviction

• you have paid any restitution ordered

Remember if no conviction was recorded at the time of the offence then the offence does not appear on your criminal record ever. This article is just about where a conviction was recorded.

This article is all about the Queensland charge of going armed so as to cause fear charge.

The Law

This offence is contained in section 69 of the Criminal Code. The section states:

“ Any person who goes armed in public without lawful occasion in such a manner as to cause fear to any person is guilty of a misdemeanour, and is liable to imprisonment for 2 years.”

The three key ingredients, then, are that:

• the defendant was in public,

• openly armed,

• in a manner likely to cause fear.

In practical terms, the circumstances are important. A person holding a cricket bat in his yard playing a game with his kids is very different from the same man holding a cricket bat in a neighbour’s driveway, calling the neighbour out for a confrontation.

Lawful occasion

It may be noticed in subsection (1) that the person must go armed in public “without lawful occasion”. A person might readily contemplate a “lawful occasion” to be an armed police officer or security guard. For a private citizen there might be lawful occasions to be armed. It is unlikely for self-protection or self-defence to be such an occasion when there is no clear and present threat to the defendant.

One case that considered this question of “lawful occasion” was one where a man, who was on his own property, shot his rifle into the air to break up a fight. One of the judges in the case commented:

Other lawful reasons or excuses for going, at least temporarily, armed in public on the outskirts of towns in western Queensland can readily be imagined. Using a rifle to shoot a rabid dog or a wild pig that presents a threat to the safety of people in the area would surely not under s. 69(1) be “without lawful occasion” simply because it takes place in public and causes fear. Here it was not dogs or pigs that Mr Bennett was seeking to restrain, but his own sons, who were engaged in a serious attack on another person. Firing a shot harmlessly in the air in order to bring them to their senses was not only a legitimate reason or lawful excuse for his going armed in public (if that is what he did) but a thoroughly effective one. On hearing the shot fired, Lindsay decided to “cut it out”, as he said, and leave his victim go. Both he and George stopped hitting Barry Facer and returned to the house.

Defences to the charge of going armed so as to cause fear

• The defendant was not the person who committed the offence

• The defendant was not in public

• The defendant was not “armed”

• The defendant did not act in a manner to cause fear

• The defendant had a lawful occasion to be armed

Penalty

The maximum penalty is up to 2 years imprisonment.

Penalties can vary widely for this offence. In one case, a man was sentenced to a term of actual imprisonment for pointing a handgun at someone and pulling back the top slide. Though he didn’t shoot the weapon, the court found his actions to be so serious to be deserving of imprisonment. In another case, a man was brandishing a knife in a threatening way. He was also sentenced to imprisonment. Fines or penalties less than imprisonment are also available for this offence. Nevertheless, the courts consider this to be a serious charge and we highly recommend you seek legal advice if you are charged with such an offence.

Which court hears the charge of going armed so as to cause fear

The Magistrates Court closet to where the alleged offence occurred will hear the charge.

Can the charge be withdrawn?

Depending on the circumstances it may be possible to negotiate the charge with the prosecutor. This is called case conferencing. For example it might be possible to try and convince the prosecutor that the wounding was excused by law or the medical evidence does not meet the standard for a wounding charge and therefore the charge should be withdrawn.

Will I get a criminal conviction if I plead guilty to the charge?

The answer is possibly. It depends on a number of factors. Only an experienced criminal lawyer can give you advice on the best way to try and avoid a conviction being recorded if you plead guilty to this charge. Note however if imprisonment is part of the penalty then a conviction must be recorded.

 Learn more about the difference between a conviction and non-conviction

The police want to talk to me about a going armed so as to cause fear charge

Never ever give an interview to police without first getting legal advice. Even if you are innocent, even if you have a defence you could say the wrong thing and virtually guarantee you will be found guilty of the charge.

The police are not on your side, get immediate legal advice.

Learn more about your right to silence.

I’m not guilty of the going armed so as to cause fear

Still don’t talk to the police. A lawyer would require the prosecutor to give them all their evidence and statements. This is known as the full brief of evidence. Once the brief was received then negotiations with the prosecutor to drop the charge can occur.

Learn more about what to do if accused of a crime you didn’t commit.

• I didn’t do it! What to do if Accused of a Crime you didn’t Commit

• Visit our main criminal law website

How do I get more information or engage you to act for me? 

If you want to engage us or just need further free information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you

2. Call us on 1300 952 255seven days a week, 7am to 7pm

3. Click hereto select a time for us to have a free 15 minute telephone conference with you

4. Email the firms founder on This email address is being protected from spambots. You need JavaScript enabled to view it.

5. Send us a message onFacebook Messenger

6. Click the help button at the bottom right and leave us a message

We are a no pressure law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission or until we are legally allowed to.

We will be closed for the Christmas break from 12pm on 22 December until 8:30am on 8 January 2024.

Over the Christmas break you can leave a telephone message and from 2 January, until we reopen, we will be checking the messages and responding once per day.  We do have availability to represent clients in January.

Alternatively if you would like to book a free telephone conference for when we fully reopen on 8 January you can click this link www.calendly.com/clarity_law

We'd like to thank everyone who supported the firm this year and wish everyone a safe and happy festive season.

Threatening violence in Queensland is a criminal offence where a person through their acts and/or words threatens another person with the intention to intimidate or annoy that person. The charge is commonly confused with Common Assault and Threats. This article seeks to outline and broadly examine Threatening Violence for those seeking additional information on this charge.

What does the law say?

Threatening violence involves the intentional use of, actions or words against another in order to intimidate or annoy that person, including threats to enter property.

Section 75 of the Criminal Code states:             

(1) Any person who—

(a) with intent to intimidate or annoy any person, by words or conduct threatens to enter or damage a dwelling or other premises; or

(b) with intent to alarm any person, discharges loaded firearms or does any other act that is likely to cause any person in the vicinity to fear bodily harm to any person or damage to property;

commits a crime.

Penalty—

Maximum penalty—2 years imprisonment.

(2) If the offence is committed in the night the offender is guilty of a crime, and is liable to imprisonment for 5 years.

The Prosecution must prove each of the relevant provisions beyond a reasonable doubt to succeed in a prosecution for the charge.

s75(1)(a):

1. The defendant, by acts or words threatened to enter or damage a dwelling (home) or premises (including the land boundary); and

2. The defendant did so with the intent to annoy or intimidate another person.

s75(1)(b):

1. The defendant discharged a loaded firearm (or did any other act likely to cause any person in the area to fear bodily harm to a person or damage to property); and

2. The defendant did so with intent to alarm any person.

What are the elements of the offence?

1. A person through their words or actions threaten to enter or damage a dwelling or other premises; and

2. The person intended to intimidate or annoy another person.

or

1. A person discharges a loaded firearm or did an action which likely would cause fear of harm or damage; and

2. The person intended to alarm any person.

What do these elements actually mean?

Threatened - The court has determined that threatened takes its ordinary English word. A threat must be of such a nature and intent that an ordinary person might be influenced or frightened.

Intention – The court and parliament have determined again that Intent and Intention take their ordinary meaning. Intention can be inferred or drawn out from circumstances prior to and resulting from the conduct of the defendant before, during and after their conduct and acts.

The charge ultimately requires that a person threatens to enter a property (including but not limited to their home, their yard, their place of business ect) and the purpose of that threat to enter is to either intimidate or annoy that person.

Discharged a loaded firearm – This element is fairly self explanatory, did the person fire a firearm. Where there arises some ambiguity is acts likely to cause the fear of bodily harm to a person or damage to property. Such an extended definition could look like the producing and brandishing of a firearm, cocking the weapon and pointing it at a person.

What does this actually look like?

Some examples of what a Threatening Violence under s75(1)(a) looks like:

Mr Hatfield has a longstanding feud with his neighbour Mr McCoy. Mr Hatfield has taken exception to how Mr McCoy has let his hedges grow out and so Mr Hatfield standing at his front gate shouts at Mr McCoy that he is going to come onto his land and destroy his hedges. Mr Hatfield clearly has the intention to enter Mr McCoy’s property and damage his hedges.

Mr Jones is driving home from work when Mrs Smith cuts him off in traffic. Mr Jones follows Mrs Smith home and once she parks her car at home, he gets out of his car. Mr Jones is shouting and swearing at Mrs Smith and tells her that he is going to get his tire spanner from the boot of his car and break her windows for cutting him off. Mr Jones walks back to his car and opens his boot. Mrs Smith yells that she is calling the police and Mr Jones gets in his car and drives off. Mr Jones has by both his verbal threats to damage Mrs Smith’s car and the action of going to get the tire spanner form his vehicle cause Mrs Smith to be intimidated. Mr Jones’ intention can be clearly demonstrated through is words and conduct.

An example of what a Threatening Violence under s75(1)(b) looks like:

Mr Evans is trying to sell a stolen motorcycle to Mr Brown to make some quick money. Mr Evans gets frustrated with Mr Brown asking questions about its registration and service history and an argument breaks out between them about the bike being stolen and Mr Brown threatens to call the police. Mr Evans produces a firearm from his shorts and points it at Mr Brown, saying I am going to shoot you in the face if you do not get out of here right now. Mr Evans through his conduct has done an action which has caused fear of bodily harm to Mr Brown and it was Mr Evans intention to cause this fear in Mr Brown.

What are the defences to this charge?

The most common defences to this offence are:

1. Mistake of Identity – meaning that the defendant is not the person who committed the offence;

2. The words or actions did not constitute a valid threat;

3. The defendant did not have the intention to threaten, annoy or intimidate the person;

4. The defendant was not armed with a firearm (including replica);

5. Self-defence; or

6.  Duress

What court will hear my matter?

All matters will commence in the Magistrates Court closes to where the offence occurred. If the charge occurred during the day, then the matter must be heard in Magistrates Court. If the offence occurred at night and police charge with this circumstance of aggravation, then the matter will be committed to the District Court to be dealt with.

The police want to talk to me about a matter where it is alleged I have threatened violence.

Never ever give an interview to police without first getting legal advice. Even if you are innocent, even if you have a defence you could say the wrong thing and virtually guarantee you will be found guilty of the charge.

The police are not on your side, get immediate legal advice before talking to police and if you can’t get that legal advice don’t talk to the police.

Learn more about your right to silence.

Can the charge be withdrawn?

Depending on the circumstances it may be possible to negotiate the charge with the prosecutor. This is called case conferencing. For example it might be possible to try and convince the prosecutor that the element of the charge aren’t made out or the defendant has a defence and therefore the charge should be withdrawn.

Conclusion

This article is by no means a completely comprehensive outline of the charge of threatening violence. This article is designed to give an overview of the charge, what the prosecution must prove and what the charge may look like in practice. If the police want to speak with you about a matter or you have been charged with threatening violence, please feel free to contact our office for a free initial consultation.

How do I get more information or engage you to act for me? 

If you want to engage us or just need further free information or advice then you can either;

1.       Use our contact form and we will contact you by email or phone at a time that suits you

2.       Call us on 1300 952 255 seven days a week, 7am to 7pm

3.       Click here to select a time for us to have a free 15 minute telephone conference with you

4.       Email the firms founder on This email address is being protected from spambots. You need JavaScript enabled to view it.

5.       Send us a message on Facebook Messenger

6.       Click the help button at the bottom right and leave us a message

We are a no pressure law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission or until we are legally allowed to.

Arson is a serious criminal offence in Queensland, carrying significant penalties. If someone is charged or accused of arson in Queensland it’s crucial to comprehend the law around arson charges, the elements of the offence, and the potential consequences for offenders. In this article, we delve into the specifics of arson law in Queensland, providing essential information for those facing this charge.

What constitutes arson?

Arson involves the wilful and unlawful act of setting fire to various types of property. These include:

• A building or structure

• A motor vehicle, train, aircraft, or vessel

• Stacks of cultivated vegetable produce or mineral/vegetable fuel

Examples of arson scenarios:

• Setting fire to a house

• Setting fire to a car

• Setting fire to a door to a unit

• Setting fire to a chair in a house

• Setting fire to a business to collect on the insurance

• Setting fire to a boat

What does the law say?

Section 461 of the Criminal Code sets out the charge of arson as:

(1) Any person who wilfully and unlawfully sets fire to any of the things following, that is to say—

(a) a building or structure;

(b) a motor vehicle, train, aircraft or vessel;

(c) any stack of cultivated vegetable produce, or of mineral or vegetable fuel;

(d) a mine, or the workings, fittings, or appliances of a mine;

is guilty of a crime, and is liable to imprisonment for life.

(2) It is immaterial whether or not a thing mentioned in subsection (1) (a) or (b) is complete.

Elements of the offence

To secure a conviction for arson, the prosecution must prove:

1. The accused set fire to the property; and

2. The act was wilful; and

3. The defendant did so unlawfully.

Looks look at those elements in more detail.

The accused set fire to the property

There must be some actual damage caused by the fire. It is not enough that the accused was going to set fire to the property, a fire must have started.

It is however not required that the whole property is destroyed, merely that some component of the property is damaged by fire. It is also not a requirement that the property was complete, it is still an offence if say the property was a house and it was only half completed.

The act was wilful

The act of setting fire to the property must be intentional or acting with indifference to the likelihood of a foreseen result occurring. In R v Lockwood; ex parte Attorney-General the court specifically found that that the word “wilfully” applies to an accused person who deliberately did an act (that is, that it was a willed act) aware at the time he did it, that the result, i.e. a fire was, the likely consequence of his act and that he recklessly did the act regardless of the risk.

If at the time of the arson the accused was intoxicated this may, depending on the level of the intoxication, mean the accused could not have formed the necessary intent to damage the property.

The defendant did so unlawfully

It is immaterial whether the person had lawful possession of the property at the time of the arson or indeed owned or part owned the property.

If an accused has a valid defence then the offence cannot be unlawfully.

Defences to arson

Defences against arson charges may include:

• Lack of intent

• Lawful reasons for setting fire

• No actual property damage

• Accident

• Intoxication

• Mistake

• Identification

• Necessity

Which court hears the matter?

The matter will start in the Magistrates Court closet to where the alleged arson occurred. The charge is however too serious for the Magistrates Court to determine and will therefore ultimately be finalised in the District Court.

Penalties and sentencing for arson

Arson carries a maximum penalty of imprisonment for life. The most likely penalty will be a term of imprisonment between 19 and 48 months.

However the penalty depends on a number of factors including;

• The sentencing principles in the Penalties and Sentences Act;

• Relevant case law (previously decided cases);

• the maximum penalty of the offence;

• the penalty submissions made by the prosecution;

• the penalties submissions made by the defence;

• the personal circumstances of the defendant;

• the circumstances of the offence;

• any victim impact statement;

• the impact the offence had on an individual or the public generally;

• how much planning went in the arson offence

• the value of the property destroyed by the fire

• If any person was injured by the fire

• any time in custody the defendant has already served before the sentence and;

• the criminal history of the defendant.

Don’t try and guess what a penalty may be or rely on google searches, contact an expert criminal lawyer who can properly advise you on a potential sentence and if any defences exist.

See out article on How Does the Court Set a Prison Sentence?

See also the Queensland Sentencing Advisory Council for details of the sentences for arson that have been imposed in the past.

Can the charge be withdrawn?

Depending on the circumstances it may be possible to negotiate the charge with the prosecutor. This is called case conferencing. For example it might be possible to try and convince the prosecutor that the element of the charge aren’t made out or the defendant has a defence and therefore the charge should be withdrawn.

We once acted for a client charged with arson. He was found near a burning car with clothes the police described as smelling strongly of smoke. We were able to have the charge withdrawn as we argued they did not have enough evidence to convince a jury that it was our client who committed the arson.

Will I get a criminal conviction if I plead guilty to the charge?

The answer in almost all cases will be yes.

Only an experienced criminal lawyer can give you advice on the best way to try and avoid a conviction being recorded if you plead guilty to this charge. Note however if imprisonment is part of the penalty, as it almost always is for arson charges, then a conviction must be recorded.

The police want to talk to me about an arson charge

Never ever give an interview to police without first getting legal advice. Even if you are innocent, even if you have a defence you could say the wrong thing and virtually guarantee you will be found guilty of the charge.

The police are not on your side, get immediate legal advice before talking to police and if you can’t get that legal advice don’t talk to the police.

Learn more about your right to silence.

FAQ

Q: Can an accidental fire be considered arson?

A: No, arson requires wilful and unlawful intent. Accidental fires do not fall under this category.

Q: What if the accused was mentally impaired?

A: If the accused lacked the capacity to understand their actions due to mental impairment, it may be a valid defence.

Q: Is arson treated differently for juveniles?

A: Yes, age-related factors play a role. Juveniles (under 18) will have different legal considerations and a different sentences law.

How do I get more information or engage you to act for me? 

If you want to engage us or just need further free information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you

2. Call us on 1300 952 255 seven days a week, 7am to 7pm

3. Click here to select a time for us to have a free 15 minute telephone conference with you

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We are a no pressure law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission or until we are legally allowed to.

If you don’t engage us that fine too, at least you will have more information on the charge and its consequences.

A person coming before the court for the first time is rightfully nervous, they are thinking about what the penalty will be, if there is any disqualification, is a conviction going to be recorded! There is no shortage of things to consider. People incidentally will turn their mind to, what is going to happen to my reputation, will my matter be reported on. Queensland courts, with few exceptions, operate under the principle of the General Rule of Openness. I have written a companion article for this one about whether or not a case can be published in the media, here. 

Many clients ask whether they can request that the court be closed during their sentence?

Why are courts “Open”?

In Queensland there is a principle called the General Rule of Openness, which has been described as being a fundamental principle of our judicial system. The general rule is that all criminal court proceedings are open to the public and can be freely reported on. There are some exceptions to this rule, mainly surrounding Domestic Violence matters and matters relating to Children, such as Childrens Courts or where Children or victims of sexual assault are giving evidence.

In addition an offender who has cooperated with authorities (ie an informer) might have some evidence or part of the sentence closed.

Can I ask the Court to close for my sentence?

No.

Once an adult matter is proceeding to sentence, that meaning any special witnesses have given their evidence, the sentence will occur in open court, to allow for the principles of open and transparent justice to prevail.

As we have previously written, the likelihood of a matter being reported on by the media will depend on the seriousness of the offence, the location of the court and whether there are any special features of the case (including but not limited to a celebrity or matter of public interest).

You cannot simply ask that the court be closed as the sentence taking place in an open court will cause embarrassment, affect your employment or social wellbeing.

What can I do?

There is, in essence not a lot that can be done to close the court.

Conclusion

While it is a naturally distressing time in your life, the thought of an additional punishment in the court of public opinion can add unneeded stress. It is for better or worse an underpinning principle that the administration of justice occurs openly and publicly. The only thing that a defendant can do, is focus on the conduct of their case.