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30/10/2013
A CASE LAW REVIEW OF
ARSONISTS WITH
INTELLECTUAL DISABILITY IN
AUSTRALIA
Ashlee Curtis, PhD Candidate
Deakin University, Geelong
Supervisors: Associate Professor Keith McVilly & Professor Andrew Day
Deakin University CRICOS Provider Code: 00113B
WHY ARSON?
• Lengthy sentences for arson (Australian Institute of Criminology,
2004)
• High costs of arson - Australia spends 12 billion dollars
each year on fires, which includes costs in anticipation
of fires, as a consequence of fires and in response to
fires (Ashe, McAneney, & Pitman, 2009)
• High reoffending rate - One third of arsonists report
more than one episode of fire setting (Repo & Virkkunen, 1997)
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30/10/2013
WHY ARSON & INTELLECTUAL
DISABILITY?
• Arson is asserted to be common among those with ID
(Day, 1993; Simpson & Hogg, 2001; Mannynsalo, Putkonen, Lindberg & Kotilainen,
2009)
• Potential prevalence rates of arson range from 4.2%
(Lindsay et al., 2010) to 12.7% (Rose et al., 2008) within populations
of offenders with ID
• Legal and clinical complexities associated with their
apprehension, adjudication, treatment and
rehabilitation (Lindsay et al., 2010)
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WHY ARSON & INTELLECTUAL
DISABILITY?
• Arsonists tend to have a low IQ (Hall, Clayton & Johnson, 2005)
• Persons with ID are impulsive (Drabsch, 2004)
• Limited ability to relate current behaviour to the future
possible consequences
• Cognitive limitations and impaired psycho-social
development (Hall, Clayton, & Johnson, 2005; Read & Read, 2008)
• Might account for, or provide mitigation for their actions
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LACK OF DATA
• No publicly available national dataset concerning the
number or profile of people who commit acts of arson
or fire-related offences
• Classification of arson under other categories of
crime, such as ‘property crime’ in crime statistics is
problematic
• No published statistics on the number of suspected
arson offenders who have identified ID’s, or the
number of those who have been convicted in
Australian courts
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PART 1: AIM
• To contribute to current knowledge about
arson offenders with ID in Australia
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METHOD
• A case law search of AustLII, West Law AU and Lexis Nexis AU
was conducted over the last decade (from 2003- June 2013)
• These were then screened to determine the proportion of
cases that involved defendants with an ID
• Police crime statistics search from each state’s police website
was conducted to determine the number of arson cases
reported to police over the same period. This data was not
available for NT and these statistics were only available from
2004 onwards for both the ACT and Tasmania
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RESULTS
1. General arson cases
2. Arson cases in which the offender had an ID
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GENERAL ARSON CASES
• 50 arson cases were located in case law vs. 127,307
cases reported to police
• Only .03% of instances of suspected arson reported to police
are reported in public case law
• In 62% of cases the offender was diagnosed with
some form of mental illness (excluding ID)
• 28% were diagnosed with Schizophrenia in various
forms and 12% had been diagnosed with Depression
• Average length of imprisonment was 5.23 years
• Sentences ranged from 6 months to 17.75 years
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ARSON & INTELLECTUAL DISABILITY
• In 6 of 50 (12%) cases the offender was diagnosed with an ID
• 83% had also been diagnosed with a co-morbid mental illness- much
higher than the 20-40% reported in community samples (Cooper, Smiley,
Morrison, Williamson, & Allen, 2007; Deb, Thomas, & Bright, 2001; Einfeld & Tonge, 1996)
• Four of the six offenders were male
• Two had prior offences- damaging a building or motor vehicle
causing harm, and rape
• Another two had other offences they were charged with at the time
of the index offence of arson, including further charges of arson and
murder
• Ages ranged from 19 to 56, with a mean of 41 years
• Average imprisonment length was 7.3 years
• Sentences ranged from 3 to 17.75 years
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AN EXAMPLE OF A CASE LOCATED IN
THE CASE LAW: DPP V DENHOLM
• Male, 48 years old
• Diagnosed with ID, as well as an unspecified mental
illness
• He set fire to a brothel- damage of $240000
• Charged with one count of arson
• Pleaded guilty
• Prior offence of rape
• Found guilty
• 4 years imprisonment (judge stated if offender didn’t
have mental impairment sentence would have
been up to 7 years imprisonment)
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ARSON & INTELLECTUAL DISABILITY
• Predominantly male and the arson offence typically formed part of a
wider pattern of offending, including other serious crimes
• Number of cases reported to police is much higher than these case law
statistics suggest
• Issues with case law & identification of ID by the CJS
• Lack of evidence for police to pursue charges in many cases
• Diversion from the court system- no available statistics
• Average length of imprisonment for all arson offenders is 5.23 years vs.
7.3 years for those with ID
• Fires set by people with ID may be more serious and cause more
damage, or may simply be seen as more ‘dangerous’ or
‘high-risk’ and less likely to respond to sentences that
invoke individual deterrence
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PART TWO: AIM
• To analyse judges sentencing remarks for arsonists with
intellectual disability, to determine the main concerns that
arise for judges when sentencing such offenders
• To identify strengths and deficiencies in the current legislative
frameworks guiding sentencing, together with the associated
policies and procedures guiding rehabilitation for offenders
with ID who commit crimes of arson and other offences related
to fire setting
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METHOD
• The same cases were utilised that were located
through the initial case law search
• Sentencing remarks of the judges were analysed using
NVivo 10
• The analysis was informed by inductive thematic
analysis, with a focus on topics and themes that
related to the considerations made by judges when
sentencing arsonists with ID
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RESULTS
1. Deterrence
2. Moral Culpability
3. Community Protection
4. Rehabilitation
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DETERRENCE
• General deterrence was the most common theme throughout
the judges sentencing remarks (mentioned 30 times)
• Widely accepted in Australia that less importance should be placed on the
principle of general deterrence when the offender has a mental illness or
condition
• Although judges often mentioned the issue of deterrence and
gave consideration to it, they tended to focus more on the
seriousness of the crime, and the issue of community
protection
• Perhaps due to persons with ID not being an appropriate
medium for making an example to others
• One judge specifically noted concern for using an offender with
ID as a model for deterrence
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MORAL CULPABILITY
• Moral culpability was discussed several times, and in particular
whether this was decreased due to the offender having an ID
• Less focus placed on culpability in these cases, in contrast to
arson cases in which mental health of the offender is the main
concern
“Such a question is less likely to arise in sentencing a
mentally retarded offender because the lack of capacity to
reason, as an ordinary person might, as to the wrongfulness of
the conduct will, in most cases, substantially lessen the
offender’s moral culpability for the offence”
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COMMUNITY PROTECTION
• Four judges discussed the seriousness of the offence of arson,
and community protection was mentioned on 8 occasions
“The crime of arson was too serious and the risk to the community
was too high to reduce the sentence based on reduced culpability alone… I
must regard the protection of the community from the offender as the
principal purpose for which the sentence is imposed”
“If protection of the community is to be the principal purpose of the
sentence, less regard must be given to your personal circumstances,
including your impaired mental functioning, but I have given weight
to them”
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COMMUNITY PROTECTION
• It seems that judges place the most focus on the
seriousness of the crime and protection of the
community
• Judges are acknowledging the persons ID and the
impact that this may have had on the commission of
their offence
• In some cases the judges stated that they gave a
reduced sentence to such offenders
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COMMUNITY PROTECTION
“Absent the mental impairments, I would have regarded a
sentence of that range or perhaps higher, maybe up to seven
years or so as being appropriate for an offence as grave as this
with the risks that it carried and the degree of appreciation
which I think you have had of those risks. However, it seems
to me that the proper application of the Verdins principles
requires me to moderate that sentence significantly and I
propose to do that notwithstanding what I've said about the
need to include within the sentencing consideration with
regard to the need for the protection of the community”
• Highlights the need for appropriate treatment
programs
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REHABILITATION
• Rehabilitation was mentioned fourteen times by judges
• Rehabilitation is affected by the offenders mental condition (Walvisch,
2010), and if the offender’s illness is viewed as treatable, they are
assumed to have good prospects for rehabilitation (R v Oznek, 2007)
• However, this implies that those with an untreatable illness, such
as an ID, are assumed to have poor prospects for rehabilitation
which may result in longer imprisonment sentences
“The reports indicate that you will need a good deal of assistance in
the future to help you stay out of trouble. I would regard your
prospects of rehabilitation as guarded. Without considerable help
and support, I would see a real risk of you re-offending”
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REHABILITATION
• The existence of a treatment program for the behaviour is
argued to affect the sentencing (R v Curtain, 2007)
• In the case of arson this is likely to be deemed irrelevant due
to the lack of treatment programmes currently available in
Australia
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SUMMARY
• In approximately 12% of arson cases which were reported in the
case law, the offender has an ID. These offenders were
predominantly male and 86% had a comorbid mental illness
• Judges state that they at times are providing reduced sentences
to persons with ID due to them not being suitable for the
principle of deterrence, and often being considered to have low
levels of moral culpability- however this is not clear based on the
figures, and a further understanding of this is warranted
• Need to consider the specific needs of mentally disordered
offenders and to ensure that well researched and evidence-based
treatment programs are available
• Need to further develop our understanding of these offenders,
and consequently to determine where and how resources should
be allocated to appropriately prevent such offences from
occurring.
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QUESTIONS?
• If you would like to participate in research investigating the
need for treatment programmes for arsonists with ID please
email me at [email protected]
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