Sentencing offenders with mental impairment: the case of arsonists with intellectual disability

Publication Date03 June 2014
AuthorAshlee Curtis,Keith McVilly,Andrew Day
SubjectHealth & social care,Learning & intellectual disabilities,Offending behaviour
Sentencing offenders with mental
impairment: the case of arsonists
with intellectual disability
Ashlee Curtis, Keith McVilly and Andrew Day
Ashlee Curtis is based at the
School of Psychology, Deakin
University, Geelong, Australia.
Professor Andrew Day is based
at the School of Psychology,
Deakin University, Burwood,
Australia, where Associate
Professor Keith McVilly is a
Principal Research Fellow.
Purpose – Offenders with intellectual disability (ID) who commit arson and other acts of fire setting are
over-represented in the criminal justice system in Australia, as in many other jurisdictions. The purpose
of this paper is to provide insight into the judicial considerations that influence sentencing in these cases.
Design/methodology/approach – Case law was utilised to locate and analyse judges’ sentencing
remarks for offenders with ID found guilty of an offence of arson. These data were subject to Inductive
Content Analysis to establish the major judicial considerations in sentencing.
Findings – Seven common issues emerged: general deterrence, seriousness of arson, rehabilitation,
sentencing options, moral culpability,protection of the community,and punishment. Judges noted that they
handed down reduced sentences to persons with ID relative to the severity of their offending, that
they considered people with ID to have low levels of moral culpability, and that these offenders did not
provide good examples for community deterrence.
Originality/value – The current study highlights the need for judges to have available a range of sentencing
options, including diversion and treatment/rehabilitation programmes for persons with ID, particularly for
those involved in more serious offences such as arson.
Keywords Disability, Intellectual disability, Criminal justice system, Arson, Sentencing, Case law,
Fire setting, Mental impairment
Paper type Research paper
Offenders with intellectual disability (ID) are substantially over-represented inthe criminal justice
system, both in Australia and in other jurisdictions. For example, in one Australian state, people
with ID represent 8 per cent of the prison population, whereas they make up only 2 per cent
of the general population (NSW Law Reform Commission, 2012). Amongst offenders with ID,
arson appears to be particularly common (Day, 1993; Ma
¨nnynsalo et al., 2009; Simpson and
Hogg, 2001). An Australian study of 207 fire setting offenders, convicted between 2004 and
2009, found that 8.5 per cent had an ID (all mild); a rate which is far higher than the 3.9 per cent
that was found in the comparison group of 197 randomly selected non-fire setting offenders
(Ducat et al., 2013). However,it has also been suggested that high prevalence rates may be due
to the settings in which these data have been gathered (commonly medium- and high-secure
facilities), rather than reflecting an actual over representation of ID offenders (Hogue et al., 2006;
Lindsay et al., 2010).
Prior to considering how such offenders are managed by the judicial system, it is important to
consider how a diagnosis of ID more generally can impact on their subsequent treatment.
Depending upon the jurisdiction in which the person is apprehended, there are typically four
such pathways for offenders with ID in Australia: diversion from the usual court processes;
assessment of fitness to plead; entering a plea of not guilty by reason of mental impairment;
or a guilty plea and subsequent sentencing.
VOL. 5 NO. 2 2014, pp. 78-87, CEmerald Group Publishing Limited, ISSN 2050-8824 DOI 10.1108/JIDOB-05-2014-0005

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