2017.12.19

2016 (A) 190

Keishu Vol. 71, No. 10

Decision on whether or not it is permitted to take human casualties caused by an act constituting arson of inhabited buildings into account in sentencing

Case concerning a charge of arson of inhabited buildings

Decision of the Third Petty bench, dismissed

Tokyo High Court, Judgment of December 15, 2015

It is permitted to take human casualties caused by an act constituting arson of inhabited buildings into account in sentencing within the limits of the statutory penalty of the crime.

Article 108 of the Penal Code



Penal Code

(Arson of Inhabited Buildings)

Article 108 A person who sets fire to and burns a building, train, tram, vessel or mine actually used as a dwelling or in which a person is actually present shall be punished by the death penalty or imprisonment with work for life or for a definite term of not less than 5 years.

The final appeal is dismissed.

Out of the number of days of pre-sentencing detention for this trial, 610 days are included in the calculation of the sentence.

The reasons for final appeal submitted by counsels AKASAKA Hiroshi, DAIDO Tomoko and NAGAI Hiroshi, including the alleged violation of the Constitution, are substantially allegations of mere legal violations, factual errors and inappropriate sentencing, and do not constitute any of the grounds for final appeal specified in Article 405 of the Code of Criminal Procedure.

Considering the reasons for final appeal, the Court judges ex officio whether or not it was reasonable to take human deaths caused by arson into account in sentencing in this case where the accused was indicted for arson of inhabited buildings.

1. A summary of the charged facts is as follows: Around 4:38 a.m. on December 29, 2011, the accused set fire with a lighter to cardboard boxes that had been piled up under the eaves of a workshop building adjacent to a house located in Yoriimachi, Osato-gun, Saitama (a single-storied, zinc-roofed wooden house with a floor area of approximately 115.03 m2), knowing that the fire may spread to the house which was actually used as a dwelling by two persons and in which the inhabitants were actually present, causing the fire to spread to and entirely destroy the house.

2. The judgment in first instance sentenced the accused to 13 years of imprisonment, by taking into account in sentencing, among other things, the fact that the two inhabitants of the aforementioned house failed to escape and died of carbon monoxide poisoning.

3. The judgment in prior instance upheld the court of first instance’s sentencing, ruling that there was nothing unreasonable in itself about the court of first instance’s counting the fatal human consequences of the act of arson against the accused, and that this was nothing like punishing the accused for an uncharged offense.

4. The appellant alleges that it was against the principle of no adjudication without prosecution that the court of prior instance took into account in sentencing the fatal consequences that are not mentioned in neither the count of arson of inhabited buildings nor the facts constituting the crime.

5. Arson is a crime which poses a danger to the lives, bodies and property of unspecified or many people by fire. While human casualties are not themselves a component factor of the crime, they are within the naturally contemplated range of the aforementioned danger. In particular, the targets of arson of inhabited buildings are a building, train, tram, vessel or mine actually used as a dwelling or in which a person is actually present, which is typically associated with a reasonable probability of resulting in human casualties. Considering that the statutory penalty of arson of inhabited buildings is heavy, including the death penalty, and that no separate special category of crime with heavier punishment has been set up for cases where the aforementioned danger resulted in actual human casualties, it is understood that the law naturally expects such human casualties to be taken into account in the sentencing of the crime. Therefore, it should be permitted to take human casualties caused by an act constituting arson of inhabited buildings into account in sentencing within the limits of the statutory penalty of the crime.

In this case, the two persons who were present in the house burned and destroyed by arson died of carbon monoxide poisoning. The judgment in prior instance, which upheld the judgment in first instance that took the fatal consequences into account in sentencing, contains no such illegality as alleged in the reasons for final appeal.

Accordingly, the Court unanimously decides as set forth in the main text in accordance with Article 414 and Article 386, paragraph (1), item (iii) of the Code of Criminal Procedure and Article 21 of the Penal Code.

Justice KIUCHI Michiyoshi

Justice OKABE Kiyoko

Justice YAMASAKI Toshimitsu

Justice TOKURA Saburo

Justice HAYASHI Keiichi