ARSON & DELIBERATELY LIT FIRES CONSULTATION PAPER NO 1 December 2011 About this Consultation Paper
The Sentencing Advisory Council is committed to giving members of the community the opportunity to express their How to respond views about sentencing issues in Tasmania. The purpose of this The Sentencing Advisory Council consultation paper is to assist invites responses to the items in the discussion about the discussed in this Consultation legislative framework, sentencing Paper. The questions are both options, intervention and summarised at the beginning community information programs of the paper and contained in available for adults and juveniles the relevant parts of the paper involved in firesetting in Tasmania. so that the options can be The Council intends to use the understood in context. responses to inform its advice to the Attorney-General. You may choose to answer This paper reviews the current some or all of the questions and legislative framework and your answers may be referred sentencing options for adults to or quoted in the final report. and juveniles found guilty of Responses will be published on arson and fire related offences in the Council’s website. If you do The Sentencing Tasmania and other jurisdictions not wish your response to be Advisory Council so that appropriate comparisons published or if you are happy to can be made. It then considers Acknowledgements have the submission published The Sentencing Advisory Council the recommendations made but wish to remain anonymous was established in June 2010 by This Consultation Paper was by the Victorian Bushfire Royal the then Attorney-General, Lara Commission, the National Forum please state this in your response. prepared by Ms Lisa Gregg. to Reduce Bushfire in Australia After considering all responses it Giddings MP. The Council was Professor Kate Warner, a member and the recent Symposium - is intended that the final report, established, in part, as an advisory of the Sentencing Advisory Advancing Bushfire Prevention in containing recommendations, will body to the Attorney-General. Council contributed to the Australia. The questions posed in be submitted to the Attorney- Its other functions are to bridge content and editing of this paper. this paper are in the context of General and published. the gap between the community, these recommendations whereby courts and Government by The Sentencing Advisory Council prevention techniques are now at Responses should be made in informing, educating and advising would like to thank the Tasmania the forefront when addressing the writing by Monday, 7 March 2011. on sentencing issues in Tasmania. Fire Service for their valuable issue of arson and deliberately lit If possible they should The Council members are Mr contributions and discussions fires throughout Australia. be sent by email to Peter Tree SC (Chair), Professor during the preparation of this This Consultation Paper will also [email protected] otherwise Kate Warner, Dr Jeremy Prichard, paper. The Council would also be available on the Sentencing they can be mailed to the Mr Norman Reaburn, Mr Phil like to thank the Department Advisory Council Website at Sentencing Advisory Council at Wilkinson, Ms Kim Baumeler, Mr of Justice for their advice and www.sentencingcouncil.tas.gov.au or GPO 825 Hobart 7001 Andrew Saint, Mr Chris Gunson, assistance and Tasmania Police for can be sent by mail or email. or faxed to (03) 6233 3705. Ms Liz Little and Mr Tony Jacobs. access to their data.
ISBN: 978-0-9806330-8-5 Arson and Deliberately Lit Fires– hard copy ISBN: 978-0-9806330-9-2 Arson and Deliberately Lit Fires – e book (PDF) Copyright © State of Tasmania – Department of Justice This work is copyright, however material from this publication may be copied and published by State or Federal Government Agencies without permission of the Department on the condition that the meaning of the material is not altered and the Tasmanian Department of Justice is acknowledged as the source of the material.Any other persons or bodies wishing to use material must seek permission. Contents
About this Consultation Paper ii How to respond ii The Sentencing Advisory Council ii Acknowledgements ii Abbreviations iv List of questions posed in this Consultation Paper v
1 Introduction 1 1.1 Terms of Reference 1 1.2 Background and context 1 1.3 Outline of the project 2 1.4 Definitions 2 1.5 The incidence and costs of arson 3 1.6 Is arson increasing in Tasmania? 3 1.7 Investigation and clear up rates 4 1.8 Why arson is unique 4 1.9 The arsonist 4 1.10 Profile and motives of the adult arsonist 5 1.11 Profile and motives of the juvenile firesetter 6 1.12 Are arsonists dangerous recidivists? 7 2. Legislative Offence Framework 8 2.1 Offence framework in Tasmania 8 2.2 Offence framework in other jurisdictions 9 2.3 Options for reform 10 3 Sentencing Framework in Tasmania - Adults 16 3.1 Sentencing adults in Tasmania 16 3.2 Sentencing practices for arson and other fire related offences 18 3.3 Options for reform 19 4. Sentencing Framework in Tasmania - Juveniles 23 4.1 Diversion and sentencing juveniles in Tasmania 23 4.2 Sentencing practices for arson and other fire related offences 24 4.3 Sentencing provisions in other jurisdictions in Australia 25 4.4 The need for reform 26 4.5 Options for reform 27 5. Treatment Programs - Adults 30 5.1 International treatment programs 30 5.2 Treatment programs in other jurisdictions in Australia 30 5.3 Treatment programs in Tasmania 31 5.4 The need for a new program? 31 5.5 Options for a new program 32 6. Education and Treatment Programs - Juveniles 34 6.1 International education and treatment programs 34 6.2 Education and treatment programs in other jurisdictions in Australia 35 6.3 Education and treatment programs in Tasmania 37 6.4 The need for a new program? 37 6.5 Options for a new program 37 7. Community Information and Education Programs 39 7.1 The recent trend toward fire prevention 39 7.2 Community education and information programs in Australia 39 7.3 The current focus on crime prevention in Tasmania 40 7.4 Is there the need for further community education programs in Tasmania? 41
Appendix A 42 Appendix B 43
Abbreviations
ACF Arson Control Forum - England AFAC Australasian Fire and Emergency Service Authorities Council AIC Australian Institute of Criminology BOSCAR Bureau of Crime Statistics and Research Bushfire CRC Bushfire Cooperative Research Centre CFMHS Community Forensic Mental Health Service CMD Court Mandated Diversion DHHS Department of Health and Human Services DTO Drug Treatment Order DPP Director of Public Prosecutions JFLIP Juvenile Fire Lighting Intervention Program JOAP Juvenile Arson Offenders Program MCCOC Model Criminal Code Officers Committee MCLOC Model Criminal Law Officers Committee RACV Royal Automobile Club of Victoria SCAG Standing Committee of Attorneys-General TFS Tasmania Fire Service VBRC Victorian Bushfires Royal Commission
iv Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) Questions posed in this consultation paper
Question One page 11 Question Five page 20
Should the offences of arson (s 268) and setting fire to Should a cost recovery order be an ancillary sentencing property (s 269) in the Criminal Code be replaced with order available to the court, to order a convicted a new offence of arson defined as unlawfully setting fire offender to reimburse the costs incurred by the State for to any building, dwelling, airplane, motor vehicle or responding to a fire? motorised vessel? Question Six page 21 Question Two page 12 Should a specific sentencing option for a treatment Should s276 of the Criminal Code be replaced by: program for adult fire setters be considered as an a) A definition of arson which encompasses threats based additional order of the court? on s 4.1.7 (2) and (3) of the Model Criminal Code; Question Seven page 22 b) An offence for threatening to cause property damage based on s 4.1.9 of the Model Criminal Code? a) Should deferral of sentences be considered as an option to the court prior to final sentencing? c) A redrafted offence of s 276 which covers the offences in 4.1.7 (2) and (3) and 4.1.9 of the Model Criminal b) Should deferral of sentences specific to adult firesetters Code? be considered as an option to the court prior to final sentencing? Question Three page 14 Question Eight page 27 Does Tasmania need a new bushfire offence to cover causing a fire (by lighting a fire, maintaining a fire or a) When a juvenile has been found guilty of a fire related failing to contain a fire) where there is a substantial risk offence, should a pre-sentence report to determine the of the fire spreading? level of risk be a prerequisite to sentencing? Question Four page 15 b) When a juvenile has admitted to a fire related offence, should an assessment to determine the level of risk be a a) Does Tasmania need an arson/bushfire offence to prerequisite to diversion to community conference by cover the event where a fire has been lit, deliberately or Tasmania Police? recklessly, or there is a failure to contain a fire that has resulted in injury or death? c) When a juvenile has admitted to a fire related offence, should an assessment to determine the level of risk be a b) If so what form should it take? prerequisite to diversion to formal caution by Tasmania Police?
Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) v Question Nine page 27 Question Thirteen page 32 a) When a juvenile has been found guilty of a fire related Should Tasmania consider making formal links with offence and referred to a community conference by Monash University to investigate the development of a the court, should the outcome plan for the conference program for adult fire setters who have a mental illness contain a mandatory education program or video as to or are exhibiting problematic behaviour? the harmful effects of fire? Question Fourteen page 32 b) When a juvenile has admitted to a fire related offence and is diverted to a community conference by Tasmania Should Tasmania consider a program similar to Court Police, should the outcome plan for the conference Mandated Diversion (CMD) to provide treatment contain a mandatory education program or video as to to adult fire setters who have a mental illness or are the harmful effects of fire? exhibiting problematic behaviour? c) When a juvenile has admitted to a fire related offence Question Fifteen page 32 and is diverted to a formal caution by Tasmania Police, Should Tasmania consider CFMHS to provide treatment should the caution contain a mandatory education to adult firesetters who have a mental illness or are program or video as to the harmful effects of fire? exhibiting problematic behaviour? Question Ten page 28 Question Sixteen page 33 a) When a juvenile has been found guilty of a fire related Should Tasmania consider any of the suggested methods offence and directed to a community conference by the to utilise existing services provided in Victoria? court, should the outcome plan for the conference have a mandatory requirement for the making of reparation of Question Seventeen page 38 the offence? a) Should Tasmania provide a program similar to JOAP b) When a juvenile has admitted to a fire related offence in Queensland? and is directed to a community conference by Tasmania Police, should the outcome plan for the conference have b) Should Tasmania investigate the feasibility of a mandatory requirement for the making of reparation offenders in Tasmania accessing JOAP in Queensland? for the offence? Question Eighteen page 38 c) When a juvenile has admitted to a fire related offence Should Tasmania investigate a suitable treatment and is directed to a formal caution by Tasmania Police, program for juvenile firesetters and the appropriate should the caution contain a mandatory requirement for service provider to deliver a program in Tasmania? the making of reparation for the offence? Question Eleven page 28 Question Nineteen page 41 Should Tasmania implement further community Should a specific sentencing option for a treatment information and education programs in Tasmania? program for juvenile fire setters be considered as an additional order of the court? Question Twelve page 29 a) Should deferral of sentences be considered as an option to the court prior to final sentencing? b) Should deferral of sentences specific to juvenile firesetters be considered as an option to the court prior to final sentencing?
vi Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) Introduction 1.1.1 TERMS OF REFERENCE life and extreme property damage. Over four hundred thousand hectares were burned, over two thousand By a letter dated 22 November 2010, the then homes were lost and over one hundred and fifty people Attorney-General, Lara Giddings, sought advice from lost their lives. It is suspected that some of these fires the Sentencing Advisory Council on the continued and were deliberately lit by arsonists whose actions were increasing problem of arson and deliberately lit fires. described as ‘mass murder’ by the then Australian Prime The terms of reference for this research project were Minister Kevin Rudd.1 as follows: The Victorian Bushfires Royal Commission,2 which I request the Council to conduct an overview was set up to investigate the causes and responses to of Australian and international approaches to the bushfires of 2009, made two recommendations sentencing options and post sentencing programs pertaining to arson and deliberately lit fires. First, it available to address arson attacks which could advocated a coordinated state wide approach to result in death or extensive loss to property. I am arson prevention and secondly, it proposed that the also interested to hear whether any community Commonwealth, States and Territories continue to information and education programs implemented pursue the National Action Plan to Reduce Bushfire to deter this type of behaviour have been assessed Arson in Australia.3 The main objective of the National and, if so, the results of any such assessment. Action Plan and the resultant National Work Plan to The terms of reference make it clear that this Reduce Bushfires in Australia4 was to look at bushfire project goes beyond sentencing options to include 1 Australian Broadcasting Commission. (2009, February 9). Rudd angrily consideration of community information, education and denounces ‘mass murder’ arsonists. ABC News, Melbourne. Retrieved October post sentencing programs, whether these programs 2011 from < http://www.abc.net.au/news/2009-02-09/rudd-angrily-denounces- mass-murder-arsonists/288018>. have been assessed and the results of their assessments. 2 Victorian Bushfires Royal Commission. (2010). Final Report, Melbourne. Retrieved July 2011 from < www.royalcommission.vic.gov.au/Commission- 1.2 BACKGROUND AND Reports>. 3 Recommendation 35:Victoria Police continue to pursue a coordinated CONTEXT approach to arson prevention and regularly review its approach to ensure that it contains the following elements: As a result of bushfires in Southern Tasmania in • High level of commitment from senior police • A research program aimed at refining arson prevention strategies February 1967, known as the Black Tuesday Bushfires, • Centralised coordination that includes comprehensive training, periodic over 60 people lost their lives, almost thirteen hundred evaluation of arson prevention strategies and programs, and promotion of best-practice prevention approaches. homes were lost and there was extensive damage to • A requirement that all fire-prone police service areas have arson prevention agricultural property. Reports into the causes of the plans and programs, according to their level of risk. Recommendation 36:The Commonwealth, states and territories continue to fires state that only 22 of the 110 fires were started pursue the National Action Plan to Reduce Bushfire Arson in Australia, giving accidently. priority to producing a nationally consistent framework for data collection and evaluating current and proposed programs in order to identify and share best- practice approaches. In January and February of 2009 Victoria experienced 4 Commonwealth Attorney-General’s Department.(2009a). National work plan its most devastating bushfires with catastrophic loss of to reduce bushfire arson in Australia. Canberra: Commonwealth Attorney- General’s Department. Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 1 arson prevention initiatives and identify national intervention programs for both adults and juveniles and priorities for action. lastly, community information and education programs.
In March 2010, a symposium - Advancing Bushfire 1.4 DEFINITIONS Prevention in Australia5 (the Symposium), held in A useful starting point is a definition of the term Melbourne, brought together a variety of stakeholders ‘arson’. The difficulty with terminology relating to arson to address bushfire arson.The aim of the Symposium and firesetting is that there are differences between was to advance the information needed for better legal legal terminology, fire service usage and common and policy decisions relating to the management of understandings of the terms. Historically, the legal bushfire arson in Australia.This included producing a definition of arson has involved a person deliberately report summarising the outcome of the Symposium to setting fire to a building.This is reflected in the definition inform the implementation of the National Action Plan of arson in the Criminal Code Act 1924 (Tas)(Criminal to Reduce Bushfire Arson in Australia.The Symposium Code) where there are separate offences for arson comprised of representatives from fire, police and (setting fire to a building), for setting fire to other emergency services, forensic and corrections mental property and for setting fire to vegetation.This paper health services, community groups, federal and state covers all of these forms of firesetting. Bushfire arson government agencies and academic disciplines such as is also a common term in the literature. It covers fires criminology, sustainability, psychology and law to identify deliberately lit with intent to cause damage and includes best practice arson prevention models operating in situations when a person is reckless in causing the fire Australia and at an international level.6 The findings and reckless regarding the spread of that fire. of the Symposium were consistent with international trends which consistently reiterate the need for a The term ‘bushfire’ can also cause confusion. Fire preventative approach to arson and deliberately lit fires. managers use the terms bushfire, wildfire and vegetation fire interchangeably while many other people This Consultation Paper reviews the current Tasmanian restrict the use of bushfire to describe a fire in a forest position on the issue of arson and deliberately lit fires. or similar vegetation as opposed to other vegetation It considers the legislative structure, the sentencing types such as scrub or grass.The Australasian Fire and framework for adults and juveniles, the success or Emergency Service Authorities Council define bushfire otherwise of intervention programs and community as ‘a general term to describe a fire in vegetation.’The information and education programs both at an Tasmania Fire Service also uses the term ‘vegetation interstate and at an international level. The options for fire’ in its fire reporting processes.‘Wildfire’ is the reform presented in this paper are in response to the term used in the United States and is widespread in terms of reference and reflect the trend toward the the international literature. Given different agencies, preventative approach to arson and deliberately lit fires. at a national and international level, all use different 1.3 OUTLINE OF THE PROJECT terminology this paper may vary depending on the report, review, or paper in which it is mentioned. Chapter 1 of this paper considers arson generally before moving on to discuss the incidence and cost of Although ‘pyromania’ is a commonly used term it should arson, the increase in frequency of arson and profiles be avoided as a synonym for arson as it is an established and motives of both the juvenile and adult firesetters. psychiatric diagnosis. Pyromania has been described 7 Chapters 2 to 4 provide an overview of the offence as an ‘irresistible urge to light fires.’ It is accepted framework and sentencing options in Tasmania and that the majority of arsonists are not pyromaniacs as other jurisdictions and consider possible options for they have an understanding of what they are doing reform. Chapters 5 to 7 look at treatment and and the consequences but they still choose to do it anyway.8 There have been so few arsonists who have
5 Held by The Australian Bushfire Prevention Initiative in partnership with the 7 Doley R. (2010). Managing Arson Offenders: what do we need to know? Monash Sustainability Institute and the Australian Institute of Crime, supported National Judicial College of Australia. Sentencing Conference Canberra by the RACV. 6 & 7 February 2010. Retrieved July 2011 from
Based on previous research undertaken by the Source: Tasmania Fire Service Australian Institute of Criminology (AIC), arson in all forms costs the Australian community $1.6 Billion 1.6 IS ARSON INCREASING IN annually.10 Australian fire services attend between TASMANIA? 45,000 and 60,000 bushfires each year and the The tables and figures below (see Table 1, Figures 2 and Bushfire Cooperative Research Centre (Bushfire CRC) 3) indicate that arson is increasing in Tasmania. It can be suggest approximately 13,000 to 18,000 of these seen that over a five year period arson has increased are deliberately lit.11 According to the Tasmania Fire in damage to Housing Tasmania properties and stolen Service (TFS) the total value of property loss (bushfire motor vehicles. The State Fire Commission annual and structural) for the 2010-11 financial year was reports indicate a steady rise in the percentage of fires approximately $73.6 million for the State.12 The TFS determined by TFS as deliberate.16 attended approximately 3600 fires13 in the 2010-11 period, they contend that over 40 per cent of those Table 1: The cost of arson in Housing were deliberately lit (see Figure 1). Data from Tasmania Tasmania properties for the financial years Police show that there were 1864 burnt out cars 2004-05 to 2008-09. from 2005-2010.14 The damage by arson to Housing Tasmania properties for the financial year 2008-09 Cost in 2011 Financial Year Actual Cost $’000 alone was reported at $3,390,000.00.15 figures $’000 2004/05 1,344 1,778 2005/06 1,588 2,030 2006/07 2,102 2,594 2007/08 2,334 2,717 2008/09 3,390 3,751
Source: Director of Public Prosecutions 9 Australian Institute of Criminology. (2004). Motives for committing arson: part 1 – general arson. Bushfire Arson Bulletin No 4. Canberra: Australian Institute of Criminology. 10 Muller D. (2009). Using crime prevention to reduce deliberate bushfires in Australia. Canberra: Australian Institute of Criminology. iii. 11 Bushfire Cooperative Research Centre and the Australian Fire and Emergency Service Authorities Council. (2010). Bushfire Arson:What do we know? Fire Note Issue 63. Retrieved July 2010 from
14 Source:Tasmania Police. 16 This increase is due, in part, to the push by the TFS to decrease the number 15 Source: Director of Public Prosecutions. if fires where the cause is undetermined. Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 3 Figure 2: Stolen motor vehicles damaged by arson 1.8 WHY ARSON IS UNIQUE 2006-2010. The reasons people light fires will be explored later 400 in this paper, but generally these motivations are no 350 352 different from any other anti-social behaviour. A person 338 341 300 might be dishonestly claiming insurance or a young 297 250 274 person might be acting out in an abusive family setting. 200 The problem with using fire to affect a fraud, or to
TOTAL (n=1602) TOTAL 150 express frustration or anger, is the potential for the fire
100 to spread to more than its intended target, and lead to an outcome more extreme than the effects of most 50 other forms of anti-social behaviour. 18 0 2006 2007 2008 2009 2010 YEAR Another problem with arson is its potential as an Source: Tasmania Police instrument of power. ‘Fire is unique in its ability to put Figure 3: The percentage of fires determined by TFS as power in the hands of an otherwise disempowered deliberate for the financial years 2006-07 to 2010-11. person. An otherwise powerless person with a
50 cigarette lighter or a box of matches can achieve UNDETERMINED 50 destruction, create excitement or enact revenge in 40 DELIBERATE UNDETERMINED a uniquely dramatic way. There are few forces more 30 1617 1459 1583 1727 1624 35.3% 36.6% 37.0% 40.8% 4044.4% potentiallyDELIBERATE destructive than fire and perhaps none that
PERCENTAGE 20 can be so easily created and released.’19 30 1617 1459 1583 1727 1624 841 896 972 877 682 36.6% 40.8% 10 18.4% 22.5% 22.7% 20.7% 35.3%18.7% 37.0% 44.4%
0 2006/07 2007/08 2008/09 2009/10 PERCENTAGE 20 2010/11 1.9 THE ARSONIST (n=4579) (n=3990) (n=4277) (n=4234) (n=3654)
FINANCIAL YEAR 841 896 972 877 682 It is imperative that we have an understanding of who 10 18.4% 22.5% 22.7% 20.7% 18.7% is committing arson and why they are doing it. It is this 0 knowledge that forms the foundation of an appropriate 2006/07 2007/08 2008/09 2009/10 2010/11 (n=4579) (n=3990) (n=4277) (n=4234) (n=3654) response. At the outset it should be acknowledged FINANCIAL YEAR Source: Tasmania Fire Service that most of the research available in relation to the profile of the arsonist is based on arsonists who have 1.7 INVESTIGATION AND CLEAR been convicted. Given the clear up rate is so low, those UP RATES who are eventually convicted may not necessarily be representative of all firesetters. Research on arson has A clear up rate for a crime is the percentage of been varied and has taken different approaches.There criminals convicted for that crime compared to the have been studies on patterns, motives, classifications, total number of crimes reported. Clear up rates typologies and profiles.What has been consistent differ between the types of arson reported. Bushfire in these findings is that the typical profile of an arson has been claimed to have the lowest clear up adult arsonist is a young (25-30) male from a lower rate of any crime in Australia. Research into the clear socioeconomic background who is unemployed or up rates for arson shows that for the five year period working in an unskilled job.20 from 2001-2005 Victoria had, on average, 55 offenders convicted for arson per year. For the same period Tasmanian data indicating the sex and age of offenders NSW had, on average, 26 offenders convicted for arson for all arson and arson related offences in Tasmania also per year. In 2004 these two states had more than indicates that the bulk of offenders are young males. 27,000 fires between them. On the assumption that Raw data obtained from Tasmania Police on known half of these 27,000 fires were due to arson then the
identification and conviction rate is somewhere around 18 Willis M. (2004). Bushfire arson: a review of the literature. Canberra: Australian four in every one thousand incidents.17 Institute of Criminology. Retrieved May 2011 from
17 Tomison A. (2010). Bushfire Arson: Setting the Scene. Cited in Stanley J and 19 Ibid 12. Kestin T eds. above n 6. 20 Muller D. above n 10. 4 Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) Figure 4: Age and sex of offenders who have committed fire related offences. 150
120 150 MALE 120 90 MALE FEMALE 90 FEMALE
TOTAL (n=1070) TOTAL 60
TOTAL (n=1070) TOTAL 60
30 30
0 ?716662605857555453515049484746454443424140393837363534333231302928272625242322212019181716151413121110987 AGE OF OFFENDER
0 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 53 54 55 57 58 60 62 66 71 ? AGE OF OFFENDER Source: Tasmania Police offenders for the period 2005-2010 indicates that • Instrumental: intentional firesetting as a means of young male offenders are responsible for the majority achieving a desired goal, e.g. insurance fraud or of fires that are deliberately lit.The data indicates 90.3 crime concealment. per cent are male of whom, 38.6 per cent are adult • Expressive: emotional expression as a means of males and 50.8 per cent are juvenile males (n=1070).21 communicating with the outside world or being empowered e.g. revenge, stimulation, vandalism 1.10 PROFILE AND MOTIVES OF • Due to the effects of mental illness: the most THE ADULT ARSONIST common illnesses are alcohol abuse, personality disorders, depression and schizophrenia.24 The various attempts to classify the motives of a • Mixed or motiveless. ‘typical’ arsonist have proved problematic. One review concluded ‘there is actually no such thing as a typical Ducat and Ogloff acknowledge that the categorisations arsonist, as arson is a complex and multifaceted have been based primarily on research on structural behaviour.’22 arson and suggest that these motives may not be the same as those that underlie bushfire arson. These The voluminous research on the motives of firesetting authors suggest the motive for bushfire arson is ‘more has been reviewed and broadly categorised in recent tenuous and is likely to be directed at society as a 23 Australian research by Ducat and Ogloff as: whole, either as displaced anger or due to general anti-social tendencies.’25 In conclusion, they agree with other commentators stating that bushfire arson should
21 Raw data refers to all offenders charged with arson offences (n=1199), not be considered separately in relation to both offence all of those charged eventuated in court proceedings for various reasons, the category and intervention programs.26 number represents the final total charged (n=1070).Those under the age of 18 in this group (n=608) were subject to the diversion process (see Figure 5) prior to court proceedings. 24 Community Forensic Mental Health in Tasmania would not generally classify 22 Muller D. above n 10, 13. alcohol abuse or a personality disorder as a standalone mental illnesses. 23 Ducat L and Ogloff J. (2011). Understanding and Preventing Bushfire-Setting: 25 Ducat and Ogloff. above n 23, 344. A Psychological Perspective. Psychiatry, Psychology and Law. 18 (3), 341-356. 26 Willis M. above n 18, cited in Ducat L and Ogloff J. above n 23. Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 5 The effect of mental illness as a motive for firesetting nearly three quarters of deliberately lit fires.31 This is of major concern as a disproportionate number of research is reflected in the Tasmanian data (see Figure 4). firesetters are mentally ill or disordered. Past research Research into juvenile firesetting makes a clear indicates as many as one third of firesetters have a distinction between ‘fireplay’ and ‘firesetting’ behaviour. major mental illness.27 Doley’s recent research on mental These two labels create a distinction based on the illness and arson has led her to question past research element of intent and malice. Fireplay describes the that makes a causative link between the two, she child or juvenile who is normally under the age of suggests that assuming the mental illness has caused the ten and who lights fires as a result of curiosity or arson carries the risk that other causative factors may experimentation and is not malicious. Firesetting is not have been addressed. Although there may not be a decidedly different, the standard intent is higher than causal relationship between mental illness and firesetting in fireplay and the degree of malice can vary. It is the it may possibly be a ‘factor that prevents them from firesetting juveniles who use fire as an ‘instrument developing the necessary strategies to do something of purposeful action.’32 It is this firesetter who has more socially acceptable, other than firesetting, to the potential to become a serial arsonist later in life, regulate their emotions.’28 Doley concludes that those particularly if the firesetting is not treated. who have a mental illness often go on to become serial arsonists. As a result, she argues there is clearly a need Australian research into the backgrounds of juvenile to tailor programs for this group. firesetters consistently shows that they come from ‘backgrounds characterised by parental absence, family Firefighter arson is prevalent enough in Australia to breakdown and conflict, parental psychopathy, erratic warrant consideration.The existing research into the parenting styles and techniques, and low levels of motives of firefighters who commit arson is that it parental involvement with the children. A number of relieves inactivity and generates excitement. Willis has studies have also shown that many child firesetters have noted that the firefighters who engage in arson are suffered physical and sexual abuse.’ 33 found to be relatively new at the job, show difficulties with schooling, family and relationships, and are often Classification schemes or typologies consider found to be under personal stress.29 Although most the characteristics or traits common in any given firesetters typically have a lower than average IQ, Doley behaviour. An overview of the literature on firesetting 34 argues firefighter arsonists are not representative of this in the United States of America suggests that most 35 group and normally have an above average IQ. persuasive typology in use is one by Kolko who built a classification scheme from clinical assessments of known Some commentators have queried the assertion that juvenile firesetters. This classification identifies subtypes arsonists have a lower than average IQ. It is suggested of juvenile firesetters and asserts these categories that it is more likely that arsonists are in the ‘average’ IQ are not always mutually exclusive. The four subtypes range, and some of them, like firefighters, have an above identified are listed below: average IQ and ‘clearly it is the less intelligent ones that are caught.’30 • Curious, who sets fires out of fascination • Pathological, who sets fires out of deep-seated 1.11 PROFILE AND MOTIVES OF individual dysfunction THE JUVENILE FIRESETTER • Expressive, a cry for help Research shows that a large proportion of firesetting is conducted by juveniles. The Australian Institute of 31Australian Institute of Criminology. (2005). Preventing juvenile firesetting. AICrime Reduction Matters No39. Canberra: Australian Institute of Criminology. Criminology state that juveniles are responsible for 32 Putman C and Kirkpatrick J. (2005). Juvenile Firesetting:A Research Overview. Washington DC: U.S Department of Justice. 2. Retrieved June 2011 from
Doley suggests that there are general criminal characteristics that can be applied to most criminals but arsonists have some characteristics that are not general to all criminals, but arson specific. She asserts that adult firesetting is strongly predicted by firesetting in adolescence who have, in turn, had childhood experiences with fire and firesetting.36 Given 14 per cent of juveniles engage in fireplay at some stage in their life identification of motive is crucial to determining the appropriate intervention. 37 1.12 ARE ARSONISTS DANGEROUS RECIDIVISTS? A review of the international literature by Brett found that recidivism in firesetting for adult male and female firesetters has been shown to vary between 4 per cent and 60 per cent. This author concluded that the literature cannot support the hypothesis that all fire setters are inherently dangerous. It was recommended that more research should target different groups of firesetters examining the individual risk within that group with an aim of researching treatment for some groups.38 Doley supports this view and suggests that there are subgroups within the arsonist population that are more likely to reoffend. For the subgroups that do go on to become serial arsonists the fire setting progresses in both magnitude and dangerousness. The subgroups more likely to reoffend are the juvenile firesetter and the adult with a mental illness. In Doley’s opinion the bushfire arsonists are among the most dangerous of these ‘as their fires have no boundaries.’39
36 Doley R. above n 7. 37 Ibid. 38 Brett A. (2004). Kindling theory in arson: How dangerous are firesetters? Australian and New Zealand Journal of Psychiatry, 38, 419-425. 39 Doley R. above n 7. Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 7 Legislative Offence Framework 2. 2.1 OFFENCE FRAMEWORK IN the offender knew, or ought to have known, to be likely TASMANIA to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person.’ In Tasmania has a suite of minor and summary fire this instance there is no need to prove that the offender related offences which are punishable by fine rather had the intention to kill a person, it is sufficient if he than imprisonment. However, the analysis in this or she committed an unlawful act (such as arson) and Consultation Paper will only consider the indictable knew that the death of someone was likely, or would offences set out in the Criminal Code. have known if they had stopped to think about it.41 So if a person was to set fire to a building and a firefighter The indictable arson offences in the Criminal Code are in was to die in an effort to suppress that fire it could sections 268 (arson), 268A (setting fire to vegetation), be argued that the offender knew or ought to have 269 (setting fire to property) and 269A (setting fire known that such an act would be likely to cause death. with intent to injure person or property). Like all other An alternative would be a conviction for manslaughter indictable offences (except murder and treason), these which would only require the offender committed the crimes are punishable by imprisonment of up to 21 unlawful act (the arson) and a reasonable person would years. Arson is setting fire to any building, erection or have realised that the act was exposing another to an structure, ship or vessel, heap of timber or vegetable appreciable risk of serious injury. produce, or mine (s268).The prosecution must prove that the offender intended or foresaw the likelihood The most recent case in Tasmania where a person was 40 of the building etc catching fire. Section 268A is charged with homicide arising out of a fire was in 2006 unlawfully setting fire to any vegetation, living or dead when a backpacker hostel manager started a fire at the including forests, trees, saplings, shrubs, grass, crops, hostel where he worked to hide thefts of cash. The litter, bark, logs, peat et cetera. Section 269 is a catch all result was the spread of the fire and the death of one provision to cover unlawfully setting fire to any property person and injuries to six others. The hostel manager not covered by sections 268 or 268A. A fire set with was acquitted of murder but convicted of arson and the intention of injuring a person or property is covered manslaughter. In passing sentence on the offender, by s 269A.This section makes it is a crime to unlawfully Evans J in the case of McLennan 2006 commented: place flammable or combustible material, or do any other act, for the purpose of causing a fire with the It was not the prosecution’s case that the intent to injure any person or property. defendant knew that his conduct was likely to cause death and the jury’s verdict bars a finding If arson causes death then charges of murder or that the defendant ought to have known of that manslaughter may be laid. Section 157 of the Criminal likely outcome. Nevertheless his conviction for Code defines murder. Section 157(1)(c) includes causing manslaughter involves a finding that his conduct death ‘by means of an unlawful act or omission which was commonly known to be likely to cause death
40 R v Hodgson [1985] Tas R 75. 41 Simpson (1998) 194 CLR 228. 8 Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) or bodily harm. For him to have behaved as he did Every person who intentionally or recklessly causes and thereby caused a death of another is a grave damage by fire or explosion to property, whether crime. 42 or not that person owns the property, is guilty of an indictable offence and liable to imprisonment The Court found the arson was the unlawful act for life where: underpinning the defendant‘s conviction for manslaughter and recognised that the defendant a) the person knows that, or is reckless with must only be punished once for the arson. For these respect to, whether the property is inhabited or crimes the defendant was sentenced to eight years occupied; or imprisonment.43 b) the fire or explosion causes bodily harm to 2.2 OFFENCE FRAMEWORK IN another person. OTHER JURISDICTIONS This provision requires proof that the accused actually 2.2.1 International provisions knew that damage by fire to the specified property was a probable consequence and they proceeded Lansdell44 reviewed international bushfire arson with the conduct in the face of the risk.The additional legislation to determine if any, or any parts of it, could element that makes the crime more serious is intent or be used as a model for Australian legislation. The recklessness that the property was inhabited or the fact author noted that while the Mediterranean has climatic that bodily harm was caused. conditions similar to Australia the causes of arson vary significantly.45 In contrast, arsonists in America appear 2.2.2 States and Territories of Australia and the to have similar motivations to arsonists in Australia MCCOC Draft Code offences however, the United States have a much tougher legislative approach to preventing wildfire arson with a Each State and Territory in Australia has its own convicted arsonist in 2009 being sentenced to death. laws covering arson and arson related offences (see Appendix B). Although all jurisdictions have serious The application of international legislative approaches indictable offences which cover the destruction of was also considered at the Symposium. Examples were damage of property by fire, they have quite different drawn from Greece, Italy, Spain, California and USA. It approaches to the scope of the offence and the was concluded that there were no arson offences in maximum penalties that apply. New South Wales and international legislation that were suitable for adoption Western Australia, for example, do not use the term in Australian legislation. The Symposium also found ‘arson’. In some jurisdictions arson is limited to certain that fires in the Mediterranean jurisdictions were often types of property with a separate offence for other politically motivated so they could not be compared to types of property. 48 Australian jurisdictions.46 The then Model Criminal Code Officers Committee The only provision that could be appropriate for (MCCOC, now known as the Model Criminal Law consideration as a model for Australian legislation is Officers Committee, MCLOC) created model 47 found in the Canadian Criminal Code, s 433 – (Arson/ offences in 2001 following detailed consideration and Disregard for human life). This provision is set out as consultation with all jurisdictions in Australia. Arson and follows: fire related offences are included in the MCCOC Model Criminal Code (Model Criminal Code). 42 The State of Tasmania v McLennan, Evans J, 6 Sept 2006, (Sentence). 43 This sentence was cumulative upon the sentence for one year for two counts of stealing, making a total sentence of nine years. The Model Criminal Code offence of ‘arson’ is 44 Lansdell G et al. (2011).“Terror among the Gum Trees” – Is Our criminal established when a person causes damage to a building Legal Framework Adequate to Curb the Peril of Bushfire Arson in Australia? Psychiatry, Psychology and Law. 18(3), 357 – 377. or conveyance by means of fire or explosive and 45 Greek law is focussed on political and agricultural arson and Italian law is intends to cause, or is reckless as to causing, damage focussed on firefighters and seasonal workers seeking extended employment. to that building or conveyance. It was proposed this 46 Anderson J and Lansdell G. (2010). The evolving legislative response to bushfire arson. Cited in Stanley J and Kestin T eds. above n 6, 44. offence carry a penalty of up to 15 years imprisonment. 47 Official title is “An Act respecting the criminal law” (R.S.C. 1985, c. C-46 as amended). 48 For an overview see Lansdell G et al. above n 44. Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 9 The Model Criminal Code also proposed a distinct 2.2.3 Provisions involving harm or danger to the offence of making a threat to a person to cause damage person to any building, property or conveyance by means of Damaging property by fire with intent to injure or endanger fire or explosive with the intention to induce fear that life the threat will be carried out, or with recklessness as to causing fear that the threat will be carried The ACT, Tasmania, NSW and Victoria have created out.This offence attracts a penalty of up to 7 years offences for damage to property by fire with intent imprisonment. to injure or to endanger life. These provisions vary in scope but generally provide for higher penalties to be The Model Criminal Code ‘bushfires’ offence is imposed.52 established when a person causes a fire, and intends or is reckless as to causing a fire and is reckless as to Reckless endangerment of another person’s life the spread of fire to vegetation on property belonging to another. This offence attracts a penalty of up to 15 Pursuant to s197(2) of the Crimes Act 1958 (Vic) a years. The rationale for this offence was that it should person who destroys or damages property intending to ‘adequately reflect the harm to collective or community endanger life shall be treated as intending to endanger interests involved in bushfires.’49 The MCCOC (the life of another if he knows or believes that the life of Committee) concluded that: another is more likely than not to be endangered by the destruction or damage.53 The essence of the offence is to be found in conduct which creates a risk of uncontrolled Damaging property occasioning death spread of fire to vegetation on land which is not owned or occupied by the offender. Damage to Victoria has an additional offence found in s197A of vegetation maybe of great or little moment. For the Crimes Act 1958 (Vic). This is the only example some species of Australian flora, fire is beneficial to of a specific offence for arson causing death in any of procreation of the species. The real gravamen of the jurisdictions in Australia. To establish this offence the offence is creation of a risk, which may or may the prosecution must prove intentional or reckless not eventuate, of catastrophic damage to property, destruction of or damage to property by fire and a life or environment.50 causal connection between the fire and death. There is no requirement that the death be caused intentionally The Model Criminal Code ‘bushfires’ offence has been or recklessly. enacted in Victoria, South Australia, New South Wales, the Australian Capital Territory and the Northern 2.3 OPTIONS FOR REFORM Territory with some minor modifications. When NSW 2.3.1 Background introduced the Model Criminal Code ‘bushfires’ offence, the aim was not to address a flaw in the law but to ‘seek The National Work Plan to Reduce Deliberate to emphasise the gravity of the danger that bushfires Bushfires in Australia, which was endorsed by the represent by enacting a special offence of causing a Victorian Bushfires Royal Commission, contained a bushfire.’ 51 What has essentially happened is that the recommendation for nationally consistent bushfire 54 majority of jurisdictions have legislated to create a and arson offences. The objective was for distinct offence for deliberately or recklessly starting a ‘nationally consistent arson and bushfire offences 55 bushfire which carries a maximum penalty reflecting the that appropriately reflect the gravity of the offence.’ harm to collective or community interests associated As a result the Commonwealth Attorney-General with such fires. recommended to the then Standing Committee of Attorney’s-General (SCAG, now known as the Standing Council on Law and Justice, SCLJ) that Ministers in all
49 Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General. (2001). Model Criminal Code Report. Canberra: 52 Crimes Act 1900 (ACT) s 117 (1), Criminal Code Act (1924) (Tas) s 269A Commonwealth Attorney-General’s Department. Chapt 4, 47. Crimes Act 1900 (NSW) s 198, Crimes Act 1958 (Vic) s 197(2). 50 Ibid 51. 53 See Crimes Act 1958 (Vic) s 197(5)(b). 51 Parliament of NSW. (April 12 2002). Second reading speech - Hansard, 54 Commonwealth Attorney-General’s Department. above n 4. Legislative Assembly. New South Wales: Government Printer 55 Ibid 5. 10 Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) States and Territories of Australia agree to implement Instead the Model Criminal Code would treat damage the Model Criminal Code bushfire and arson offences to standing crops and timber by the proposed bushfire (see Appendix A).To date,Tasmania has not done so. offence.57 Given that arson is the most serious offence in the list of arson related offences, there is a good The Model Criminal Code does not contain specific argument that a more modern approach would be offences based on injury or death due to arson or to include vehicles and aircraft in the arson offence bushfire arson.The arson offence is essentially about and to omit cultivated vegetable produce. This would damage to structure and bushfire arson is based on the allow the repeal of the general offence of setting fire damage to public property owned by all Australians. to property in s 269 in the Criminal Code, an offence The Committee considered that it was unnecessary which the Committee pointed out was wide enough to and confusing to create special offences in the criminal cover setting fire to another person’s cigar without their damage offences penalising conduct which causes consent!58 or risks injury or death from fire arguing that such situations would be covered by offences of reckless endangerment.56 As is clear from the description Question One of the offence framework above,Tasmania does not Should the offences of arson (s 268) and setting have a specific offence for injury or death caused by fire to property (s 269)in the Criminal Code be fire and instead relies upon on wounding, murder or manslaughter to cover these types of injures. replaced with a new offence of arson defined as unlawfully setting fire to any building, dwelling, The Model Criminal Code has the general principles of airplane, motor vehicle or motorised vessel? criminal responsibility set out in Chapter 2 which applies to all offences contained within it. Given this chapter is fundamentally different from Chapter IV of the Tasmanian Criminal Code dealing with general principles 2.3.3 Item Two – Include offences for threats to of criminal responsibility, the bushfire and arson offences damage of property by fire. contained in the Model Criminal Code cannot simply be The Model Criminal Code definition of arson includes lifted and inserted into the Criminal Code. making a threat to a person to damage a building or conveyance by fire or explosion. Section 4.1.7 (2) and This does not mean however, that consideration (3) state: cannot be given to modifying the Model Criminal Code offences and/or including new arson offences with (2) A person who: injury or death as an element. It appears that while the (a) makes to another person a threat to Tasmanian Government’s view is that it is unnecessary damage any building or conveyance belonging to adopt the model arson and bushfire offences, it is to that other person or a third person by not opposed to having the matter examined further. means of fire or explosives, and property, and (b) intends that other person to fear that the 2.3.2 Item One – Adopt the Model Criminal threat will be carried out or is reckless as to Code offence of arson. causing that other person to fear that the The current offence of arson in s 268 of the Criminal threat will be carried out, Code covers as well as any building, ship or vessel, an is guilty of an offence assortment of agricultural and forest products such Maximum penalty: Imprisonment of 7 years as hay and timber. In contrast the Model Criminal (3) In the prosecution of an offence against Code offence of arson covers buildings, motor vehicles, subsection (2) it is not necessary to prove that motorised vehicles and aircraft. The Committee the person threatened actually feared that the argued that there is no particular reason why, in a treat would be carried out. post agricultural society, the law of criminal damage to property should single out fire damage to felled timber This offence has a parallel in the definition of assault in of harvested agricultural products for special treatment. 57 MCCOC. above n 49, 39. 56 MCCOC. above n 49, 41. 58 Ibid. Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 11 s 182 of the Criminal Code where as well as an written message. As the Committee pointed out, these application of force an assault can be committed offences involve serious threats to cause property by threatening to apply force. A threat requires a damage in situations where there is a risk of serious threatening gesture and words alone are insufficient.59 bodily harm or death. There is a strong case for Currently a person who makes a threat to a person criminalising such conduct. to set fire to property is only guilty of an offence if the threat is made ‘in writing’. Section 276 (Sending letters threatening to burn or destroy) of the Criminal Code Question Two provides: Should s276 of the Criminal Code be replaced by: Any person who, knowing the contents thereof, a) A definition of arson which encompasses directly or indirectly causes any person to receive threats based on s 4.1.7 (2) and (3) of the Model any writing threatening that any property shall be Criminal Code; unlawfully burnt, destroyed, or injured, is guilty of a b) An offence for threatening to cause property crime. damage based on s 4.1.9 of the Model Criminal As well as making a threat to cause damage by arson, Code? the Model Criminal Code includes an indictable offence c) A redrafted offence of s 276 which covers the of threatening to cause property damage. Section 4.1.9 (Threat to cause property damage – fear of death or offences in 4.1.7 (2) and (3) and 4.1.9 of the serious harm) provides: Model Criminal Code?
(2) A person who: (a) makes to another a threat to damage 2.3.4 Item Three – Include a specific bushfire property, and offence in Tasmanian Legislation. (b) is reckless as to causing that other person The Model Criminal Code s 4.1.8 (Bushfires) provides: to fear that the carrying out of that threat will kill or cause serious harm to that other (1) A person: person or a third person , (a) who causes a fire, and is guilty of an offence (b) who intends or is reckless as to causing a Maximum penalty: Imprisonment of 7 years fire, and (3) In the prosecution of an offence against this (c)who is reckless as to the spread of the section it is not necessary to prove that the fire to vegetation on property belonging to person threatened actually feared that the another, treat would be carried out. Is guilty of an offence. Maximum penalty; imprisonment for 15 years. It can be seen that this offence includes the additional (2) In this section: fault element (or mental element) of not just foresight that the person to whom the threat is made will fear causing a fire includes: that the threat will be carried out, but the fear must be (a) Lighting a fire that that the threat will result in death or serious harm (b) Maintaining a fire to another person. (c) Failing to contain a fire, except where the fire was lit by another person or the fire is In favour of the enactment of these offences in place beyond the control of the person who lit the fire. of s 276 it can be argued that it is now anachronistic spread of a fire means spread of a fire beyond to have an offence ‘sending letters’ threatening to burn the capacity of the person who caused the or destroy. Text messages and email may be writing, fire to extinguish it. but voicemail messages can be just as frightening as a The rationale for this offence is to create an offence of comparable gravity as arson for persons who start 59 See s 182(1) and (2). 12 Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) bushfires.The Committee argued that traditionally the Unlawful setting fire to vegetation (s268A) is the prohibitions against conduct likely to cause bushfires, offence category covering bushfires. This offence grass fires or other rural wild fires attract comparatively requires that the offender set fire to vegetation and light penalties that do not adequately reflect the did so wilfully and without claim of right. Wilfully harm to collective or community interests involved in requires that the offender intended or foresaw that bushfires.60 the vegetation would catch alight and that the offender had no ‘claim of right’. Claim of right has been held at An argument against a further offence is that the suite common law to provide a defence where the accused of arson offences already existing in the Criminal Code is set fire to furze on a common thinking she had a right adequate. These offences are as follows: to do so.61 It can be argued that ‘unlawfully’ in s 268 does not require that the act which results in setting fire 268. Arson to the vegetation be in itself an unlawful act. The word Any person who unlawfully sets fire to any building, ‘unlawfully’ qualifies the setting fire to the vegetation (eg erection, or structure whatever, whether the same the forest or grass) not the initial fire which spread to is completed or not, or to any stack or heap of the ‘vegetation’.62 cultivated vegetable produce, or of timber, or of mineral or vegetable fuel, or to any mine, or to any It can be seen that the Model Criminal Code bushfire ship or vessel, whether completed or not, is guilty offence is broader than s268A of the Criminal Code as it of a crime, which is called arson. also includes maintaining a fire and the failure to contain a fire. It also makes it quite clear that if a person lights 268A. Unlawfully setting fire to crops, forest, a fire on their own property which spreads to private moorland, peat, &c. property of another or to publicly owned property, (1) Any person who unlawfully sets fire to any they will be criminally responsible if it was foreseen. vegetation, whether live or dead, is guilty of Technically, it is possible that this could be covered by a crime. s 268A of the Criminal Code. However, the advantage Charge: Unlawfully setting fire to of enacting a bushfire offence with such a label is that vegetation. this can serve the purpose of highlighting criminal (2) Without limiting the generality of responsibility in such cases and so enhance denunciation subsection (1), a reference to vegetation in and increase the deterrent effect of criminalising this that subsection includes a reference to – conduct. (a) any cultivated vegetable produce, whether standing or cut; An argument against a specific bushfire offence is that the Criminal Code penalty structure does not permit (b) any crop of hay or grass, whether the the legislature to indicate the gravity of the offence natural or indigenous product of the soil or by means of the maximum penalty (as all offences not, whether under cultivation or not, and in the Criminal Code have a maximum penalty of 21 whether standing or cut; years, except murder and treason).This diminished the (c) any forest, standing tree, sapling, or strength of the argument that an offence of comparable shrub, whether indigenous or cultivated; gravity with arson is being created. A counter argument (d) any moorland, heath, scrub, fern, to this is that the legislative history of the offence tussocks, sags, gorse or other weeds; or can send the same message to the public and to the (e) any peat, humus, litter, bark, stump, or judiciary as exemplified by the legislative history of log. culpable driving offences. A further argument against the Model Criminal Code bushfire offence is that as the 269. Unlawfully setting fire to property fault elements of the Model Criminal Code offences Any person who unlawfully sets fire to any depend on different general principles of criminal property not comprised in section 268 or 268A is guilty of a crime. 61 Smith v Barnham (1876) 34 LT 774, per Bramwell B cited in Walden v Hensler Charge: Unlawfully setting fire to property. (1987) 163 CLR 561, Brennan J at 572. 62 Vallance (1961) 108 CLR 56, Dixon CJ at 59, Kitto J at 63 and Windeyer J at 60 MCCOC. above n 49, 47. 78. Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 13 responsibility from those in the Criminal Code, the that offenders can be dealt with an appropriate manner Model Criminal Code bushfire offence is inappropriate. where setting fire to property causes death. These However, other jurisdictions have managed to adapt offences may appear to be adequate especially in the the Model Criminal Code offence to accommodate light of the successful manslaughter conviction in the different statutory frameworks. backpacker hostel case.
In favour of a new offence or offences is the argument Question Three that the Canadian and Victorian provisions cover a number of scenarios which would be difficult to prove Does Tasmania need a new bushfire offence or punish under traditional offence categories. For to cover causing a fire (by lighting a fire, example, the Canadian offence of Arson/Disregard for maintaining a fire or failing to contain a fire) Human Life allows a person to be punished where arson causes bodily harm to another person without where there is a substantial risk of the fire the need to prove that the bodily harm was foreseen spreading? or foreseeable.64 The Victorian offences of damaging property occasioning death requires no fault element 2.3.5 Item Four – A specific offence to cover the (or mental element) relating to the death. situation where a fire has been lit that has resulted The Victorian offence of damaging property occasioning in injury or death. death has been criticised due to the lack of requisite There are some model offences in other jurisdictions in culpability for such a serious offence. Lansdell et al Australia and Canada that could be used as an example argue that a strict liability standard in such a serious or model for incorporation into the Criminal Code. offence is not a ‘principled use of the criminal law.’65 The Canadian provision (see 2.2.1) requires proof that The authors argue that criminal responsibility, which is the accused knew, or was reckless, that damage was underpinned by the core principles of proportionality probable or that harm was actually cased. and equal treatment, are eroded with a strict liability that essentially does not require proof of fault. They The Victorian offences (see 2.2.3) include reckless further argue that an ‘offence which involves the endangerment where a person can be found guilty of consequence of causing a death of another should an offence if they knew that the life of another was require a subjective intention in relation to death, even more likely to be endangered. There is also the offence if it is expressed in the terms of recklessness.’66 of damaging property occasioning death where there must be intentional or reckless damage only.There is An argument in support of a new bushfire offence no requirement that death was caused intentionally or resulting in injury or death or endangering life is that recklessly only a causal connection between the fire and murder and manslaughter may be more difficult to the death. establish in the context of the bush than in a structural fire. Lansdell et al suggest that murder is difficult to The argument against further offences in the Criminal establish when a fire is deliberately lit in the bush as the Code is that injury and death as a result of a bushfire prosecution is faced with a demanding burden of proof is adequately covered by 269A (intent to injure) and to show beyond reasonable doubt that the firesetter other provisions in Part V of the Criminal Code – Crimes intended to take a human life. If the firesetter had not Against the Person. If serious injury is caused to a made an admission that he/she was aware that their person as a result of a deliberately lit fire it is possible conduct could kill then the requisite mental element to charge the firesetter with causing grievous bodily for murder must be by inference from the conduct 63 harm or wounding. In the event that the fire causes of the firesetter when the fire was ignited.To make death a charge of murder or manslaughter is open. The backpacker hostel case in Launceston demonstrates 64 Under existing law if bodily harm is not a foreseeable consequence of arson it cannot be taken into account as an aggravating factor: Inkson (1996) 6 Tas R 1; Agius (2000) 77 SASR 469; Lambie [2007] TASSC 10. 63 A recent indictment filed inTasmania v Capell on 18 July 2011 charged the accused with arson and wounding where it is alleged the arson of a service 65 Lansdell G et al above n 44, 361. station resulted in an explosion which caused a wound to another person. 66 Ibid. 14 Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) this inference the factors that may need to be taken similar offences with strict liability in relation to the into consideration is the firesetter’s knowledge of the element of death or bodily harm. area, the likelihood of a person being caught in the fire, whether accelerants were used, and the weather conditions on the day et cetera. 67 While s 157(1)(c) Question Four of the Criminal Code poses a test which has a partly a) Does Tasmania need an arson/bushfire offence objective element, there is still the need to prove that the particular offender with his or her knowledge and to cover the event where a fire has been lit, experience ought to have known that death was a deliberately or recklessly, or there is a failure to likely consequence of the unlawful act (such as arson contain a fire that has resulted in injury or death? or unlawfully setting fire to vegetation or property). In relation to manslaughter the authors suggest that, b) If so what form should it take? although less demanding in terms of burden of proof it still needs to be shown that a reasonable person would not have lit a fire in the same circumstances of the firesetter. The court again may have to consider the weather conditions et cetera to determine the objective dangerousness of the act.68
Further support of an added bushfire offence can be found the rationale for the creation of the offence causing death by dangerous driving.This offence was created because of the reluctance of juries to convict drivers of manslaughter where they had caused the death of a person by dangerous driving. Juries were thought to be more likely to convict of death by dangerous driving rather than manslaughter despite the fact the maximum penalty upon conviction was the same. An offence of causing death by fire could ameliorate any reluctance to convict for manslaughter. This argument can countered by the observation that there is already a dearth of prosecutions for deliberately lit fires that have resulted death and there is no comparable evidence of a reluctance to acquit arson offenders of manslaughter.
If it were decided that the Criminal Code should have an extra offence to cover lighting a fire/bushfire resulting an injury or death, s 433 of the Canadian Criminal Code and s 197A of the Crimes Act 1958 (Vic) provide possible models. Alternatively, the offence could simply be an aggravated form of the model bushfire offence. The Council draws attention to the view of Lansdell et al, that the Victorian offence was politically motivated rather than a principled use of the criminal law.69 By inference the same criticism could be levelled at any
67 Ibid. 68 Ibid. 69Ibid. Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 15 Sentencing Framework in Tasmania - Adults 3.3.1 SENTENCING ADULTS IN When a person has been found guilty of an offence the TASMANIA judge or magistrate’s choice of sentence is informed by the aims or purposes of criminal sentencing.These 3.1.1 Overview aims are set out in s 3 of the Act and include In Tasmania the range of sentencing orders applicable to punishment, deterrence, prevention, denunciation and adults are set out in Part 2 of the Sentencing Act 1997 rehabilitation.The judge or magistrate is also bound by (Tas) (the Act) these are: a range of sentencing principles such as the principle of proportionality which requires that the punishment • Imprisonment imposed be proportionate to the seriousness of the • Drug treatment order (magistrates only) offending behaviour. In addition to the seriousness of the offence, all the circumstances of the individual case, • Suspended term of imprisonment (partially or in so far as they are relevant and known to the court wholly) must be taken into account. Sentencing law places • Community service order limits on the surrounding circumstances that can be • Probation order (with or without a conviction) taken into account. For example, in a case of arson, • Rehabilitation program order (for family violence only the foreseeable consequences of the crime can be offences only) considered by the court.70 • Fine Before imposing sentence a court may obtain a • Adjournment with undertakings (with or without a pre-sentence report.This is a report prepared by a conviction) probation officer to assist the court in deciding on the • Record a conviction and discharge the offender appropriate sentence of an offender found guilty of an • Dismiss the charge without conviction offence. By s 82 of the Act the court may, before passing sentence adjourn proceedings to enable a report to In addition to the sentencing orders in Part 2, ancillary be prepared. By the same section if the court requires orders are set out Part 9 and assessment, continuing a medical, psychological or psychiatric assessment of care, supervision, and restriction orders are set out the offender it may direct the offender to submit to an in Part 10 of the Act. Ancillary orders are orders assessment for that purpose. in addition to sentence and include restitution and compensation orders. Assessment orders are used if a From the orders listed above, the following have the person is found guilty of an offence and the court is of potential, if the court is minded, to incorporate a the opinion, or has received advice, that the person is rehabilitative component into the sentence. Restitution suffering a mental illness. Part 10 allows the person to and compensation orders are also discussed as they be detained for an assessment of the person’s suitability have particular relevance in arson cases. for a continuing care order, supervision order or restriction order. 70 Lambie [2007] TASSC 10; Agius (2000) 77 SASR 469. 16 Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 3.1.2 Probation order most commonly used form of diversion to the CMD program. Diversion by means of conditions attached A probation order is a sentence by which the offender to bail has been problematic in that the program can is under the supervision of a probation officer and be too short, although it has been found to be useful must comply with the directions given by the officer. to determine the suitability of an offender to the full The conditions of probation orders are set out in s 37 program. Diversion by means of conditions attached to of the Act. A probation order can also include special other sentencing orders has proven impractical as the conditions including attendance at educational or other offender is case managed by both the CMD manager programs as directed by the court or probation officer. and the probation officer. Diversion by means of a A probation officer can direct the offender to submit DTO is preferable for two reasons: First, a DTO must to a medical, psychological or psychiatric assessment or also have a custodial component, if the offender then treatment. defaults from the program the sentence is invoked. This creates a compulsory element to the order with 3.1.3 Community service order serious ramifications if the program is not completed. A community service order is an order made requiring Secondly, a DTO is consistent with the philosophy of the offender to carry out community service. In addition therapeutic jurisprudence, where the offender goes to requiring an offender to perform community service, back to the court and is accountable to the Magistrate.72 an offender is required as a condition of a community Theoretically, if an offender is convicted of arson and service order under s 28(g) of the Act to attend illicit drug use contributed to the offence, the court educational or other programs as directed by probation could make a DTO. DTOs are of further interest in the officer. They therefore have the potential to be used context of arson offences as a model of therapeutic to require attendance at a treatment or educational court ordered treatment and review. program designed for arson offenders. 3.1.6 Adjourn proceedings 3.1.4 Suspended sentences Section 7(f) of the Act provides the court with the Sentences of imprisonment may be wholly or partly statutory power to adjourn proceedings of a person suspended on conditions which include probation and found guilty of an offence. The court can, with or community service. By these means a rehabilitative without recording a conviction, adjourn the proceeding component can be added to a suspended sentence. for a period not exceeding 60 months and, on the offender giving an undertaking with conditions attached, 3.1.5 Court Mandated Diversion (CMD) order the release of the offender. The imposition of conditions is not intended to provide the court with a Pursuant to s 27B of the Act if an offender is found supervisory function in relation to the offender, rather guilty of one or more imprisonable offences a it aims to encourage the offender’s good behaviour. magistrate may make a Drug Treatment Order (DTO) Additional conditions may relate to participation in and divert an offender to the Court Mandated educational or rehabilitation programs. Diversion (CMD) program for treatment for their drug use. The purpose of a DTO is to provide an alternative 3.1.7 Restitution and compensation provisions to imprisonment through an integrated and supervised regime, to facilitate the offender’s rehabilitation and In Tasmania the restitution and compensation reintegration into the community, to reduce offending provisions are orders in addition to a sentence and are and reduce risks to the offender’s wellbeing.71 Drug contained in Part 9 of the Act.These orders were not treatment can be ordered through either the bail or the established for punitive purpose but as a restorative 73 sentencing process. There are three ways diversion into justice measure. Restitution orders pursuant to s 65 drug treatment can occur: through conditions attached to bail; through conditions attached to a community 72 A full outline of the philosophy behind therapeutic jurisprudence is outside the scope of this paper. A useful source of background reading can be found based order or a suspended sentence; or through a at http://www.aija.org.au/research/australasian-therapeutic-jurisprudence- Drug Treatment Order. In practice the DTO is the clearinghouse/the-concept-of-therapeutic-jurisprudence.html. 73 Restorative justice is an approach that concentrates on the needs of the victim, the community and the offender whereby the offender repairs the harm 71 Sentencing Act 1997 (Tas), s 27C. they have done by apologising, repaying or providing a community service. Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 17 are related to restoring stolen goods to the entitled the seriousness of the offence and the requisite penalty. person. Compensation provisions are found in s 68 of These were motive, nature of damage or injury, the the Act and provide for monetary compensation for extent to which human life was endangered, the use of loss, damage or injury as a result of a criminal offence. accelerant and the degree of planning.76 In sentencing By s 68 if the offence is burglary, stealing, or unlawfully arson offenders the courts have also placed substantial injuring property (including arson offences) and the weight to the principle of deterrence and less weight in court finds that another person has suffered injury, loss, the personal circumstances of the offender than they destruction or damage as a result of the offence, the might otherwise do. However, personal circumstances court must order the offender to pay compensation. have been taken into account in some cases, an In the case of any other offence the court may order example is where an offender is young and lacks the the offender to pay compensation. If the offender has requisite intent to do harm. In which case the court will insufficient funds a compensation order will take priority sometimes not impose an immediate term in prison.77 over a fine.74 Muller conducted a survey of available sentencing data Quite independently of sentencing orders there from NSW and Victoria and found that offenders who are also compensation provisions in the Fire Service were found guilty and sentenced for arson offences Act 1979 (Tas). Section 109 empowers the TFS to were often not receiving a custodial sentence. Of charge compensation for services at fires in certain those offenders who did receive a custodial sentence circumstances, including when the owner or occupier the maximum sentence available was not being has been convicted of an offence in relation to the fire. imposed. Muller considered sentencing data from the Victorian Sentencing Advisory Council for the five year 3.2 SENTENCING PRACTICES period from 2001-2006 for 276 individuals who were FOR ARSON AND OTHER FIRE sentenced for the principal offence of arson. Data RELATED OFFENCES from NSW Bureau of Crime Statistics and Research (BOSCAR) was examined from 1,099 arson and 133 It is noted that there is limited published information bushfire arson cases for defendants who appeared in on sentencing practices for arson and other fire related NSW Courts for the same period. Approximately offences in Australia. Further, most information that two thirds of the defendants in NSW were found to is available has not differentiated between sentencing be guilty and for the adult arson offenders a period of 75 for structural and bushfire arsonists. Lansdell et al imprisonment was the most common penalty. The considered the case law and literature on sentencing average custodial sentence was eleven months and outcomes for arson and fire related offences. It the average fine was around $400.The author noted was noted that sentencing for bushfire arson is not that these sentences did not demonstrate undue significantly different from the sentencing for structural leniency by the courts but reflected the fact that many arson in that both take in the fundamental principles of of these appearances were for minor offences, while sentencing such as deterrence, punishment, protection lengthy sentences were imposed on repeat and serious to the community, denunciation and rehabilitation.The offenders. 78 Muller suggests that sentencing statistics ‘do authors found that the most serious cases of arson not do justice to the various considerations that courts incur immediate incarceration to promote the principles factor into sentencing decisions, so it would be overly of deterrence and protection to the community. Minor simplistic to claim that sentences for arson are lenient.’79 bushfire offences breaching regulatory provisions In addition, many arsonists actually appearing in court normally attract a fine but the deliberate lighting of may be for minor offences whilst the most serious fires causing considerable damage will frequently incur offenders could be the ones not getting caught.80 a term of imprisonment that is rarely suspended. In addition to the general principles of sentencing the A snapshot of sentencing trends in the higher courts of authors found that case law identified particular features of arson that the court will consider when determining 76 Lansdell G et al. above n 44. 77 Newton v The State of Western Australia [2006] WASCA 24. 78 Muller D. above n 10, 38. 74 Sentencing Act 1997 (Tas) s 43. 79 Ibid. 75 Woods M and King M. (2010). Courts and Bushfire Arson. Cited in Stanley J and Kestin T eds. above n 6, 37. 80 Ibid. 18 Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) Victoria produced by the Sentencing Advisory Council was 22 months. Thirty three per cent of the custodial in Victoria for the five year period from 2003-04 to sentences were wholly suspended.82 2007-08 showed that around one third of the people sentenced for the principal offence of arson received a A further consideration in relation to the sentencing period of imprisonment. An evaluation of the types of data concerns the situation where the offender has also penalty by age indicated that sentences of imprisonment been charged with a more serious offence.The resultant were most likely given to people aged 30-34 years. sentence will not be recorded in the sentencing data for Conversely, sentences of imprisonment were least arson offences but for the more serious offence with common for those aged less than 20 years. Community which the offender has been charged. This will be the based orders were most likely for offenders aged under case in all jurisdictions where sentencing data is based 20 years and community based orders were least upon the principal offence.The principal offence is the common for those aged 35-39 years.81 most severe offence that the offender has been found guilty.83 Court data in Tasmania (and most jurisdictions For this project the Tasmanian Sentencing Advisory in Australia) is recorded by means of principal offence Council attempted to retrieve available sentencing data and principal sentence. In Tasmania this can be from the Department of Justice database (CRIMES) for explained in the terms of McLennan. As mentioned the five year period from 2005-2010 from the Supreme earlier (see 2.1) McLennan was sentenced for Court, Magistrates Court and the Youth Court for arson manslaughter, arson and theft. In the case of McLennan and fire related offences in Tasmania. This data was the 9 year sentence imposed would be recorded as a found to be unreliable and had to be discarded. First, it sentence for manslaughter and not as a sentence for indicated that there were a total of 36 adult offenders arson or theft. in the five year period sentenced by magistrates where the principal proven offence was an arson offence. 3.3 OPTIONS FOR REFORM However, magistrates have no jurisdiction to sentence 3.3.1 Item Five – Include a cost recovery order for the indictable offence of arson offences committed as an ancillary sentencing order to reimburse the by adults.The data also revealed only three sentences costs incurred by the State for responding to a fire. imposed in the Supreme Court which is clearly erroneous. Given that Tasmania Police statistics show One of the outcomes of the National Forum to that from 2005-2010 there were 462 adults charged Reduce Deliberate Bushfires in Australia was that the with arson offences the data from CRIMES cannot be Commonwealth Attorney-General recommended relied upon. to the States and Territories that they enable their courts to order a person convicted for arson to pay Professor Warner from the University of Tasmania compensation for the damage caused. allowed access to sentencing data collated for the Tasmania Law Reform Institute sentencing project and It is unlikely that the provisions of s 68 of the Sentencing a later criminology research project.The data shows Act 1997 (Tas) are wide enough to cover orders in that for the period from 2001-2008 in the record of favour of emergency services as the section refers to a single count sentences for arson (s 268), 89 per cent finding that a ‘person’ has suffered injury, loss, destruction received custodial sentences (n=56). Of those receiving or damage as a result of the offence. In Victoria, the a custodial sentence the range was three months to Sentencing Act 1991 (Vic) provides a regime for cost 24 months with a medium sentence of 12 months. recovery orders in relation to offences involving Thirty six per cent of the custodial sentences were contamination of goods and bomb hoaxes. Section wholly suspended. For the same period, single count 87D provides that if a court finds a person guilty of sentences for unlawfully setting fire to property (s 269), such an offence, the court may order the offender to 75 per cent received a custodial sentence (n=43). Of pay to the State such amount as the court thinks fit those receiving a custodial sentence the range was for costs reasonably incurred by an emergency service one month to 36 months and the medium sentence 82 There was no data available for unlawful setting fire to vegetation (s 268A). 83 Principal proven offences are classified by the Australian Standard Offence 81 Sentencing Advisory Council. (2009). Sentencing trends for arson in the higher Classification (ASOC). ASOC provides a uniform national classificatory courts of Victoria 2003-04 to 2007-08. Sentencing Snapshot no 79. Melbourne: framework for classifying offences across Australia. The ASOC classification Sentencing Advisory Council. number for arson is 1211. Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 19 agency (including the fire service) in providing an immediate response to an emergency arising out of Question Five the commission of the offence. These provisions could serve as a model for Tasmanian legislation to recover Should a cost recovery order be an ancillary from the offender costs reasonably incurred by a fire sentencing order available to the court, to order fighting agency.The power could be added to Part 9 of a convicted offender to reimburse the costs the Sentencing Act 1997 (Tas) - Orders in addition to sentence. incurred by the State for responding to a fire?
The argument supporting compensation provisions similar to those in Victoria is that they would serve to 3.3.2 Item Six – A specific sentencing option for send a clear message to a potential arsonist that they a treatment program for adult fire setters as an could be forced to reimburse costs incurred by the additional order of the court. State for responding to the fire caused. As noted earlier (see 1.10) past research has indicated that a disproportionate number of firesetters are One argument against the use of compensation mentally ill or disordered and as many as one third of provisions for arson offenders is that they are unlikely firesetters have a major mental illness.Those who have to be practically effective. Given the most common a mental illness have the potential to become serial offender is typically young and unskilled it is unlikely the arsonists, as a result there is clearly a need to tailor offender would have the funds to compensate the State programs for this group. McEwan et al suggests that for the cost of the fire fighting operation. for some firesetters it is the ‘psychological function’85 The possible introduction of State legislation to enable that is the reason behind their behaviour and there is a court to order an arsonist to reimburse the State for no intention to harm others. For these individuals the the cost of responding to a fire was put to the TFS by thought of fire setting will not be affected by deterrence the Sentencing Advisory Council in consultation for the methods and the behaviour will increase over time. preparation of this paper. The TFS drew attention to For this group of arsonists who are not firesetting for the existing provision they have in their own legislation rational reasons then treatment may be the only feasible to seek compensation for a fire fighting operation option to reduce their firesetting behaviour. McEwan from the owner of a property for a fire that could et al have noted that the criminal justice response to have been prevented. TFS stated they do not follow bushfire arson should include consideration of the role that course of action and payment has been made to of rehabilitative treatment in reducing the risks posed the commission once in the last 20 years.TFS do not by bushfire arson.86 They argue in support of offence- utilise the existing provision because they do not want specific rehabilitation while offenders are incarcerated the community to fear that they will be charged for and community based psychological interventions for the costs of responding to a fire and, as a result, resist following reasons; reporting it. 84 However, this concern is not relevant to ‘Offence specific social learning and cognitive based the issue of cost recovery from a convicted arsonist, as psychological interventions have repeatedly been the possibility of cost recovery from such a person is shown to be effective in reducing violence and unlikely to have an adverse impact on the reporting of sexual recidivism, and are routinely recommended fires. by judges and magistrates during sentencing for these crimes. Providing similar validated treatment for fire setters could in the long term offer a cost effective method of reducing the overall risk of arson in the community.’87
85 McEwan T and Freckelton I. (2011). Assessment,Treatment and Sentencing of Arson Offenders: An Overview. Psychiatry, Psychology and the Law. 18(3) 319-328, 324.
84 Interview with Andrew Comer AFSM Regional Chief and Jeff Harper Deputy 86 Ibid 324. Regional Chief,Tasmania Fire Service (12 May 2011). 87 Ibid 325. 20 Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) The availability and suitability of treatment/rehabilitation 3.1.6) by s 7(f) of the Sentencing Act 1997 (Tas) the programs for this group of adults and the options in court can adjourn proceedings and, on the offender relation to the delivery of these programs is addressed giving an undertaking with conditions attached, order in full in Chapter 5 of this Consultation Paper. For the the release of the offender. Although it has been used moment, the issue for consideration is whether there from time to time s 7(f) is unworkable as a therapeutic should be a discrete and specific sentencing option model with accountability to the court.88 Whilst it has to send an adult arsonist who has a mental illness been proposed that a therapeutic model similar to or exhibiting problematic behaviour to a treatment/ a DTO (see Chapt 5) should be an option available rehabilitation program. for treatment for some adult firesetters, the present sentencing framework does not have the capacity to By virtue of s 82 after an offender has been found defer sentencing for this purpose. Either s 7(f) and its guilty of an offence the court may order a pre-sentence conditions and breach provisions require amendment report and adjourn the proceedings to enable the or an additional order need to be inserted in the report to be prepared. If the matters the court wish Sentencing Act 1997 (Tas) to achieve this purpose. to have investigated include medical, psychological, or psychiatric assessment the court can direct the offender The Sentencing Act 1991 (Vic) s 83A allows for deferral to submit to that assessment. By s 89A in the case of a of sentencing for up to 6 months in a Magistrates family violence offence a pre-sentence report includes court if the offender is less than 25 years of age.The a rehabilitation program assessment. Section 7(ea) offender’s behaviour during the deferral period must empowers the court to make a rehabilitation order for be taken into account by the court in sentencing a family violence offender. These provisions could be the offender at the end of the deferral period.89 In a amended to make a rehabilitation order available to thorough overview of deferred sentencing in Australia adult fire setters. the Sentencing Advisory Council in Victoria in 2008 made similar recommendations to those made by the Freiberg Sentencing Review of 2002.90 These Question Six recommendations were: that the power to defer sentencing should be extended to higher courts; that Should a specific sentencing option for a it applies to offenders of any age; and the maximum treatment program for adult fire setters be period of deferral be increased to 12 months.The considered as an additional order of the court? Sentencing Advisory Council in Victoria further suggested that the success of the orders depend on them being targeted appropriately which require 3.3.3 Item Seven – Deferral of sentence as an accurate assessment and appropriate resources additional order of the court to allow an adult for the preparation of comprehensive reports and who has been found guilty of firesetting the assessments.91 To date these recommendations have opportunity to participate in a treatment program not been taken up. prior to final sentencing. Most jurisdictions in Australia have the capacity to defer The Neighbourhood Justice Centre (NJC) Court sentencing for an amount of time specified. A deferred established by the Courts Legislation (Neighbourhood sentencing option is a power provided to the court Justice Centre) Act 2006 (Vic) is a multijurisdictional after a finding of guilt to adjourn the matter to give the court including a Magistrates Court and a Children’s offender the opportunity to rehabilitate during that Court (Criminal Division). Sentencing in the Magistrates period.The progress of the offender can then be taken 88 The procedure for being called upon to appear in s 60 is defective in that no into account when sentencing. A legislative power to ‘proper officers’ appear to have been appointed and there is no-one allocated defer sentencing is found in the ACT, New South Wales, to supervise the conditions of the order. 89 Sentencing Act 1991 (Vic) s 83A(3)(a). South Australia,Victoria and in the form of a pre- 90 Freiberg A. (2002). Pathways to Justice: Sentencing Review 2002. Melbourne: sentence order in Western Australia. Department of Justice. 91 Sentencing Advisory Council (2008). Suspended Sentences. Final Report Part The Tasmanian sentencing legislation does not give the 2 Summary. Melbourne: Sentencing Advisory Council.
Question Seven
(a) Should deferral of sentences be considered as an option to the court prior to final sentencing?
(b) Should deferral of sentences specific to adult firesetters be considered as an option to the court prior to final sentencing?
92 Courts Legislation (Neighbourhood Justice Centre) Act 2006, s 4Q(3):‘Despite section 83(1)(a) of the Sentencing Act 1991, the Neighbourhood Justice Division may defer sentencing an offender under s83A of that Act even if the offender is 25 years of age or older’. 22 Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) Sentencing Framework in Tasmania - Juveniles
4.4.1 DIVERSION AND • Community service order SENTENCING JUVENILES IN • Rehabilitation program order (for family violence TASMANIA offence) • Suspended detention order (partially or wholly) This section gives a brief overview of the diversionary • Detention order and sentencing options for juveniles in Tasmania. This is followed with more detail on the sentencing options As an alternative to sentencing a youth, the court can needed to inform the question as to whether there require that a community conference be convened.94 If is a need for reform in relation to the options for the the conference is successful and the youth completes treatment of juvenile offenders. undertakings arising from the conference, no further action is taken. The Magistrates Court Youth Justice Division is the criminal jurisdiction for juveniles charged with Various influences are evident in the Act including committing arson related offences. In Tasmania the restorative justice.95 Clearly one of the main principles range of sentencing options applicable to juveniles are of the legislation is that detention be used as a last set out in the Youth Justice Act 1997 (Tas) (the Act) resort, as stated in section 5(1)(g).Amongst other which deals with young people who have committed things, the Act seeks to ‘enhance and reinforce’ the offences from the age of 10 to 17 years inclusive. role of families in minimising youth crime, punishing Children under the age of 10 or below the age of and managing young offenders.96 The objectives and criminal responsibility cannot be dealt with by the principles of the Act state that the community should criminal justice system. Prior to sentencing the Court be protected from crime, that young offenders are to can order a pre-sentence report and request that it be encouraged to accept personal responsibility for contain specified information, assessments and reports their behaviour, and that offenders should learn about relating to the youth or the youth’s family or other the human impact of crime. A number of sections matters.93 emphasise the importance of proportionality (ss 4(e), 5(1)(b)(i) and (j)) and the avoidance of unnecessary The range of sentencing options applicable to juveniles interference in the lives of young offenders (s 5(2)(c) are set out in Division 5 the Act, these are: and (d)). • Dismiss the charge (with or without a reprimand or with undertaking of good behaviour) • Release the offender and adjourn the proceedings on conditions
• Fine, restitution or compensation order 94 Ibid s 37. • Probation order 95 Prichard J. (2010). Net-Widening and the Diversion of Young People from Court: A Longitudinal Analysis With Implications for Restorative Justice, Australian and New Zealand Journal of Criminology, 43 (1), 112-129. 93 Youth Justice Act 1997 (Tas) s 33. 96 Youth Justice Act 1997 (Tas) s 4(f). Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 23 4.1.1 Diversion The undertakings may include examples listed above regarding formal cautions. However, up The Act provides Tasmania Police with diversionary to 70 hours community service may be agreed options when a young offender has admitted to an upon.99 If undertakings are not completed the offence other than a prescribed offence. 97 Depending matter may be referred to the court. on the offence with which they are charged, young arsonists may be eligible for diversion.The diversionary If a youth does not admit to firesetting or the Tasmania options are informal caution, formal caution or Police consider that diversion is inappropriate, then community conference.Tasmania Police are committed the matter will proceed to court. Upon the finding of to the objects and aims of the Act and are aware of guilt the Youth Justice Division of the Magistrates Court their importance in the diversionary process. still has the option to divert the youth to community conference if it deems that course appropriate. The forms of diversion are as follows:
• Informal Caution: when the police consider no 4.1.2 Probation order ‘formal’ action is required and the young person Subject to Section 47(f) of the Act the court may admits the offence they can divert the offender to make a probation order. The court has the ability an informal caution. Once given no further legal to attach special conditions to a probation order action can be taken. which are reasonable in the circumstances.100 Orders • Formal Caution: An authorised police officer to attend programs are supervised by Youth Justice may deliver a formal caution in the presence of Workers in the Youth Justice Division of DHHS. Once a responsible adult where a youth admits the a probation order is made the juvenile is allocated to offence and agrees to attend. The victim may be a case worker who can direct the juvenile to suitable invited to attend the caution whereby appropriate program/s. If there is no suitable tailored program discussion takes place to come to an undertaking available there is the capacity to direct the offender by the offender and the delivery of the formal to private psychological consultation.The juvenile can caution. The undertaking may include, for example, be held accountable if they do not comply with the alcohol and anger management courses, cultural probation order (or related special conditions), or they awareness programs, up to 35 hours community commit an offence of a similar nature during the period service, compensation for victims, restitution for of probation. offence affected property or anything else that may be appropriate in the circumstances.98 No further 4.1.3 Rehabilitation orders action can be taken against the young offender Section 47(i) of the Act states that in the case of who fails to complete the undertakings agreed to a family violence offence the court can make a in a formal caution. rehabilitation program order. Rehabilitation orders are • Community Conference: Again where a young also supervised by the Youth Justice Division of DHHS person has admitted the offence and agrees the same way as probation orders. A rehabilitation to attend a community conference may be order is deemed to be breached in the same way as a established. The conference is facilitated by the probation order. Department of Health and Human Services (DHHS) and is attended by a police officer, as well 4.1.5 Community service orders as the victim(s), the offender and their supporters. Provisions relating to community service orders are contained in Part 4 of the Act. A community service 97 Tasmania has three categories of prescribed offences, corresponding to three age brackets pursuant to s 3(1) Youth Justice Act 1997 (Tas). Offenders order requires a youth to perform community services aged between 10 and 13 years cannot be diverted away from court for murder, manslaughter and attempted murder. In addition to these crimes, offenders and supervised by Community Youth Justice Workers in aged 14 to 16 years cannot be diverted for serious sexual offences, aggravated the Youth Justice Division of DHHS. These orders are armed robbery, armed robbery, robbery, or preparing to commit a property offence armed with a dangerous weapon. The offences ineligible for diversion normally undertaken within 12 months unless specified for 17 year olds include all the offences listed above as well as traffic offences, marine safety offences and specific provisions contained in thePolice Offences Act 1935 (Tas). 99 Ibid s 16(1). 98 Youth Justice Act 1997 (Tas) s 10(2). 100 Ibid s 65(2). 24 Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) by the court.There is no ability for the court to attach Figure 5: special conditions to this order as can be done with Outcomes for youths charged with arson offences other community based sentences. by Tasmania Police 2005-2010.
4.1.6 Suspended detention orders 400 350 Subject to s 47(2) and s 90 (1) the court may order 300 Court Proceedings that the whole, or part of, a sentence of a period of 250 Community Conference detention be suspended. A suspended detention order 200 381 Formal Caution can be subject to special conditions the court considers (n=608) TOTAL 150 Informal Caution reasonable in the circumstances.101 100 121 50 94 12 0 4.2 SENTENCING PRACTICES OUTCOME FOR ARSON AND OTHER FIRE Source: Tasmania Police RELATED OFFENCES 4.3 SENTENCING PROVISIONS Tasmania Police statistics show that from 2005–2010 there were a total of 1199 persons charged with arson IN OTHER JURISDICTIONS IN offences.The offences were the Criminal Code offences AUSTRALIA of arson (s 268), unlawfully setting fire to vegetation (s Throughout Australia juveniles charged with arson or 268A) and unlawfully setting fire to property (s 269). fire related offences are tried in the youth justice courts Given some of these charges did not proceed for and like the Youth justice Act 1997 (Tas) the governing various reasons there were eventually 1070 offenders legislation states that detention should be used as a last dealt with by Tasmania Police for this period. Of the resort. Most jurisdictions can divert young offenders remaining 1070 offenders over 60 per cent were under from the traditional justice system. Again, similar to the the age of 18 (n=608). Out of the 608 offenders aged Tasmanian legislation there are diversionary mechanisms 18 or less, 381 charges ended in court proceedings. The in the form of cautions and family or community remaining 227 offenders were subject to the diversion conferences. process by Tasmania Police in the form of informal caution, formal caution or community conference (see 4.3.1 New South Wales – Youth Justice Figure 5). Conferencing
In Tasmania from 2005-2010 the Youth Justice Division In New South Wales specific provisions have been of the Magistrates Court handed down 127 sentences made for juveniles who have been found guilty of to juveniles where the principal offence was a fire fire related offences and referred to Youth Justice related offence (see Figure 6). As can be seen the bulk Conferencing by the court. Division 2 of the Young of the sentences are juvenile detention fully suspended, Offenders Act 1997 (NSW) provides that a young community service, probation orders and good firesetter can be sent to a Youth Justice Conference. behaviour bonds. The sentencing of arson offenders Section 52(6)(e) of that Act states that Youth Justice by the Youth Justice Division of the Magistrate Court Conferences must comply with any requirements appears to operate in accordance with the objectives of or limitations imposed on outcome plans by the the Act. regulations. The Young Offenders Regulation 2010 r8 specifies that outcome plans agreed to at youth justice conferences for bushfire/arson juvenile offenders must provide for attendance by the offender at a program or screening of a video designed to provide education as to the harmful effects of fire and the making of reparation for the offence (such as clean-up operations, treatment of injured animals and the payment of compensation).
101 Ibid s 90(4). Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 25 Figure 6: Sentencing practices in the Youth Justice Division of the Magistrates Court for fire related offences 2005-2010.
35 35 Juvenile Detention with determined term Juvenile Detention with determined term 30 Juvenile Detention with partially suspended term 30 Juvenile Detention with partially suspended term Fully suspended juvenile sentence Fully suspended juvenile sentence 25 25 CommunityCommunity Service ServiceOrders Orders
20 20 ProbationProbation Orders Orders
ReferalReferal to Conference to Conference 15 15 TOTAL (n=127) TOTAL TOTAL (n=127) TOTAL Fine Fine 10 10 Good GoodBehaviour Behaviour Bond/Reconisance Bond/Reconisance Orders Orders
Nominal Penalty 5 5 Nominal Penalty Sentence Type Unknown/Not stated Sentence Type Unknown/Not stated 0 0 (blank) SENTENCE (blank) SENTENCE Source: Department of Justice The Legislation Policy and Criminal Law Review are displaying extreme antisocial behaviour.105 Division of the Attorney-General’s Department in New South Wales reviewed the success of the compulsory A comprehensive review of the education and education component in conferencing for juveniles. They treatment programs available for juvenile firesetters and found that in the period of 2001-02 to 2007-08 there a review of any assessments on these programs can were 159 youth justice conference referrals for offences be found in Chapter 6 of this Consultation Paper. The involving damage by fire and only one conference was focus in this chapter is sentencing options. unable to agree on a suitable outcome plan. Of the As stated (see 1.11) research has shown that there total of 158 agreed outcomes, the obligations imposed appear to be two subgroups of juvenile fire setters, were completed in 140 cases with an average outcome those who exhibit fireplay and just have an interest in plan completion rate of 89 per cent.102 fire and those who have deeper psychological problems In relation to conferencing generally, the Department and use fire as an instrument of expression or as an also made reference to the major findings of a instrument of power. It is the latter subgroup who recidivism study by the BOSCAR in NSW in 2002. This are more likely to reoffend and whose firesetting will study found that conferencing has the effect of reducing increase in both magnitude and dangerousness.The or delaying reoffending and ‘youth justice conferencing research also indicates the particular need for juvenile has proven to be a successful intervention for young fire setters to be assessed and the appropriate course offenders.’ 103 of action taken. For the juvenile who exhibits fireplay there is a need for education as to the harmful effects 4.4 THE NEED FOR REFORM of fire. For the juvenile who has deeper psychological problems there is a need for a treatment program to be As mentioned earlier, research shows that a large put in place. proportion of firesetting is conducted by juveniles.The Australian Institute of Criminology asserts that juveniles Early risk assessment for a juvenile who is firesetting are responsible for nearly three quarters of deliberately will determine the appropriate program and early 104 lit fires. A recent study in New Zealand has also intervention will save unnecessary costs on a more reported that some 43 per cent of juvenile fire setters tailored program at a later stage. If intervention is
105 Martin G et al. (2004). Correlates of firesetting in a community sample of 102 New South Wales Attorney-General’s Department. (2009). Review of young adolescents. Australian and New Zealand Journal of Psychiatry, 38. 148-154 bushfire arson laws. New South Wales: A-G Department. 17. cited in Palmer E, Caulfield L and Hollin C (2005). Evaluation of interventions with arsonists and young firesetters. London: Office of the Deputy Prime Minister. 103 Ibid 18. 104 Australian Institute of Criminology. (2005). above n 31. 26 Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) necessary then the assessment is a pivotal step in designing the appropriate individualised intervention program.106 The Symposium also identified the need in Question Eight Australia for a ‘far more responsive system and possibly a) When a juvenile has been found guilty of a a mandatory treatment program for children with fire related offence, should a pre-sentence report some diagnosis.’ 107 The next section canvasses possible improvement to the legislative framework to achieve to determine the level of risk be a prerequisite to these ends. sentencing?
4.5 OPTIONS FOR REFORM b) When a juvenile has admitted to a fire related 4.5.1 Item Eight – Mandatory assessment to offence, should assessment to determine the determine the level of risk for a juvenile who has level of risk be a prerequisite to a diversion to admitted to a fire related offence or mandatory community conference by Tasmania Police? pre-sentence reporting for a juvenile who has been found guilty of a fire related offence. c) When a juvenile has admitted to a fire related Subject to s 33 of the Youth Justice Act 1997, when offence, should assessment to determine the level a youth has been found guilty of committing an of risk be a prerequisite to a diversion to formal offence the court may order a pre-sentence report. caution by Tasmania Police? A pre-sentence report is a prerequisite for probation orders, community service orders, detention orders and rehabilitation program orders. Under s 33A, in 4.5.2 Item Nine – Outcome Plans for court relation to a family violence offence, the court may and police referred community conferences, and order a rehabilitation program assessment. Given the outcome plans for police formal cautions to importance of early diagnosis in the case of juvenile include a mandatory education program or video firesetters, a pre-sentence report to determine the as to the harmful effects of fire. level of risk could be a prerequisite for sentencing an As mentioned, in New South Wales specific provisions offender who has been found guilty of fire related have been made for juveniles who have been found offences. It would then follow that a treatment/ guilty of a fire related offence and referred to a Youth rehabilitation program assessment could also be Justice Conference by the courts.The provisions state considered if the juvenile is found to be at high risk of that the outcome plan for the conference must provide reoffending. for the attendance by the offender at a program or the screening of a video as to the harmful effects of fire.The A report as to risk of reoffending for juveniles who questions asked in this Consultation Paper are whether have admitted to fire related offences could also be similar provisions should apply in Tasmania in relation to considered a prerequisite for referral to community formal cautions and community conferences. conference or formal caution as part of the diversion process for Tasmania Police. If the assessment determines the juvenile is only curious about fire Question Nine then education as to the harmful effects of fire is the appropriate response. In other cases treatment may be a) When a juvenile has been found guilty of a indicated. fire related offence and referred to a community conference by the court, should the outcome plan for the conference contain a mandatory education program or video as to the harmful effects of fire?
106 Muller D and Stebbins A. (2007). Juvenile arson intervention programs in Australia. Trends and Issues No 335. Canberra: Australian Institute of Criminology. 107 Dolan M and Stanley J. (2010). Risk factors for juvenile firesetting. Cited in Stanley J and Kestin T eds. above n 6. Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 27 b) When a juvenile has admitted to a fire c) When a juvenile has admitted to a fire related related offence and is diverted to a community offence and is directed to a formal caution by conference by Tasmania Police, should the Tasmania Police, should the caution contain outcome plan for the conference contain a a mandatory requirement for the making of mandatory education program or video as to the reparation for the offence? harmful effects of fire? 4.5.4 Item Eleven – A specific sentencing option c) When a juvenile has admitted to a fire related for a treatment program for juvenile fire setters. offence and is diverted to a formal caution by Given the importance of treatment programs for Tasmania Police, should the caution contain a juvenile firesetters with psychological problems, there mandatory education program or video as to the is a question whether there is a need for a specific harmful effects of fire? sentencing option along the same line as a rehabilitation program order for domestic violence offenders. The making of such and order would be conditional on a 4.5.3 Item Ten – Making of reparation for the recommendation in pre-sentence assessment. offence. New South Wales provides for mandatory education in Youth Justice Conferencing for juveniles who have been Question Eleven found guilty of fire related offences.The same provision Should a specific sentencing option for a also includes a mandatory requirement of the making of treatment program for juvenile fire setters be reparation for the offence such as clean-up operations, treatment of injured animals and the payment of considered as an additional order of the court? compensation. The idea of reparation is that it places the responsibility directly on the young offender and for the possible making of amends for the offence.
Question Ten
a) When a juvenile has been found guilty of a fire related offence and directed to a community conference by the court, should the outcome plan for the conference have a mandatory requirement for the making of reparation of the offence?
b) When a juvenile has admitted to a fire related offence and is directed to a community conference by Tasmania Police, should the outcome plan for the conference have a mandatory requirement for the making of reparation for the offence?
28 Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 4.5.5 Item 12 – Deferral of sentence as an additional order of the court to allow a juvenile who has been found guilty of firesetting the opportunity to participate in a treatment program prior to final sentencing. An explanation of deferred sentencing can be found in 3.3.3. Whilst it is noted that section 47(d) of the Youth Justice Act 1997 (Tas) gives the court the power to release the youth and adjourn proceedings on conditions, a court option to defer sentencing is not found in the Act.
By s 414 of the Children,Youth and Families Act 2005 (Vic) the court can defer sentencing for a period of 4 months, if considered in the best interests of the child and provided the child has agreed to the deferral. By s 415 the court may consider deferral of sentencing for the purpose of the child’s participation in a group conference if the court is considering imposing a sentence of probation or a youth supervision order. By s 416 on the hearing date the court must have regard to the child’s behaviour during the deferral.
In Tasmania consideration could be given to allow deferral of the sentences as an additional option of the court prior to sentencing. If the court was satisfied after assessment that a juvenile was at risk of reoffending and suitable for a treatment program this would give the juvenile the opportunity to address their offending behaviour prior to final sentencing. It is understood there is a significant cost that must be taken into account for a quality assured rehabilitative service to oversee sentence deferral in juveniles.
Question Twelve
(a) Should deferral of sentences be considered as an option to the court prior to final sentencing?
(b) Should deferral of sentences specific to juvenile firesetters be considered as an option to the court prior to final sentencing?
Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 29 Treatment Programs - Adults 5. 5.1 INTERNATIONAL TREATMENT some interventions were provided through forensic PROGRAMS mental health, neither the prison services nor probation services offered any specialist programs for arson A search of the available intervention and treatment offenders. 110 programs for adult arsonists internationally showed limited results. Whilst there is an abundance of Recently the UK Government has recognised the literature, research, programs and interventions directed importance of rehabilitation programs as a vital part at juveniles, the adult firesetters appear to be largely in pursing crime prevention techniques in an effort ignored. Programs from the United States are directed to prevent arson. As a result they have invested over specifically at juveniles, they are well established and £500,000 with the University of Kent to develop a have been duly assessed, however the US appears to be treatment program for male firesetters.111 devoid of programs for adult arson offenders. 5.2 TREATMENT PROGRAMS One substantial study from the United Kingdom in 2005 IN OTHER JURISDICTIONS IN commissioned by the Arson Control Forum (ACF) and conducted by the University of Leicester and the Office AUSTRALIA of the Deputy Prime Minister108 entailed a literature 5.2.1 Forensicare Victoria review of the best practice in intervening with adult The only treatment available for arsonists in Australia, arsonists and young firesetters and included a critical although not a specific arson treatment program can review of these interventions. This study concluded that be found at Forensicare in Victoria.The Community interventions with adult arsonists are ‘sparse and tend Forensic Mental Health Service, the service delivery arm to concentrate on psychiatric populations and typically of Forensicare, is responsible for providing outpatient from a cognitive-behavioural approach.’109 It was found and community based programs primarily for people that the available interventions with adults were typically who have a serious mental illness and have offended, or based on case studies and could not be generalised to are at high risk of offending. Specialist assessment and the wider population. treatment is also provided for people who present with In a later publication by the same authors in 2007 a range of serious problem behaviours. a national survey had been conducted including input from fire and rescue services, probation areas, The Problem Behaviour Program provides psychiatric youth offending services, forensic mental health units, and psychological consultation and treatment for people several government departments and the National with a range of behaviours associated with offending. Association for the Care and Resettlement of It is specifically directed at people known to have Offenders. The results of the survey found that while recently engaged in, or are at risk of engaging in, one or
110 Palmer E, Caulfield L and Hollin C. (2007). Interventions with arsonists and 108 Palmer E, Caulfield L and Hollin C. (2005). Evaluation of interventions with young firesetters: A survey of the national picture in England and Wales. Legal arsonists and young firesetters. London: Office of the Deputy Prime Minister. and Criminological Psychology 12 (1), 101-116. 109 Ibid 19. 111 McEwan T and Freckelton I. (2011). above n 85. 30 Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) more ‘problem behaviours’. Some of these behaviours of insanity’ or ‘unfit to plead’ and placed on a forensic include: serious physical violence, sexual offending order. It also provides treatment and/or assessment for (including sexual assault and rape), paedophilia, threats people with mental illness appearing in, or remanded to kill and harm others and firesetting. The program from, Magistrate and Supreme Courts. It will take provides primary, secondary and tertiary consultations, young people from Ashley Youth Detention Centre together with ongoing treatment (following a primary or non-offenders over 18 who are of significant risk consultation if clients are assessed as having treatment to themselves or others.The centre is situated near needs that require specialist forensic intervention).112 the Risdon Prison and owned and managed by the Forensicare takes a cognitive behavioural therapy DHHS.113 approach to firesetting. Many clients are referred through the criminal justice system although a referral is The Community Forensic Mental Health Service in not actually a requirement for therapy. Tasmania supervises and monitors clients found guilty of arson but not guilty by virtue of their mental illness if 5.2.2 Forensic Mental Health Specialist Support they have a community treatment order.This treatment Initiative is not specifically treating the firesetting behaviour but treats the mental illness per se.The treatment aims to As part of the Forensic Mental Health Reform Strategy reduce the risk of reoffending through compliance with 2009-2019 Victoria has initiated the Forensic Mental medication, supervision and ongoing risk assessment. In Health Specialist Support Initiative.This initiative is such cases persons are placed on ‘supervision orders’ essentially a rollout of forensic positions into Area by the Supreme Court which requires adherence to Mental Health Services in Victoria.The thrust of this conditions.114 A breach of stated conditions can result in initiative is to build capacity, confidence and competency a ‘restriction order’ at the Wilfred Lopes Centre. in general adult mental health services in respect of forensic patients, or patients in the community with 5.4 THE NEED FOR A NEW problematic behaviours. Patient’s enter and leave PROGRAM? the system for episodic periods of care as opposed to open ended, life-long treatment. In the intervening This review of treatment programs for adult arsonists, periods, these patients are managed in the adult mental and any assessments that have been made, has shown health system and it makes sense that capacity in the that programs both within Australia and internationally adult mental health system is bolstered rather than are virtually non-existent. The very few programs that expanding specialist forensic services. Under this model, have been implemented at an international level are the forensic clinicians are employed by the adult mental dated and not necessarily applicable in an Australian health services but they receive supervision/support/ context. and skills development from the forensic system. The Symposium considered existing models for
5.3 TREATMENT PROGRAMS IN treatment and risk assessment for adult offenders noted there was very little published research in the area of TASMANIA adult arsonists.The Symposium addressed the barriers There are no specific treatment programs for adult in Australia to moving forward in the treatment for adult arsonists in Tasmania within the fire service, corrections arson offenders. These were: a lack of skills/knowledge or mental health services. amongst practitioners in identifying the appropriate model for working with these individuals, limited The only treatment program available for arson resources available for developing that knowledge, offenders is the general treatment available within and a lack of political commitment underpinning these the Secure Mental Health Unit at the Wilfred Lopes problems. Given this reference demonstrates a political Centre for Forensic Mental Health.This centre commitment to treatment responses for arsonists and accommodates people with mental illnesses requiring specialist treatment, those found ‘not guilty by reasons 113 Department of Health and Human Services, Government of Tasmania, 112 The Victorian Institute of Forensic Mental Health, Government of Victoria, Forensic Mental Health Services. Retrieved July 2011
The Symposium suggested the therapeutic jurisprudence approach to treatment such as that used Question Fifteen by drug courts or other problem solving courts.116 Should Tasmania consider CFMHS to provide treatment to adult firesetters who have a mental 115 The Australian Bushfire Arson Prevention Initiative was established in 2009 with seed funding from RACV insurance and aims to advance national illness or are exhibiting problematic behaviour? action on bushfire arson prevention. The Initiative is a collaboration of the Monash Sustainability Institute and the Monash Centre for Forensic Behavioural Science in Melbourne,Victoria, and Bond University in the Gold Coast, Queensland. http://www.monash.edu.au/research/sustainability-institute/bushfire- arson/. 117 Department of Health and Human Services, Government of Tasmania, 116 Fritzon K and McEwan T. (2010). Treatment and intervention with adult Forensic Mental Health Services. Retrieved July 2011
1. Tasmania could utilise the Forensic Mental Health Specialist Support Initiative (see 5.2.2)
2. Tasmania could set up a satellite clinic with specialist Forensic staff attending regular clinics to review patients, provide supervision and provide training and education (In-reach model).
3. Staff from Tasmania could be employed in joint appointments with Forensicare.The staff could do sessional work with Forensicare to be exposed to greater numbers of patients, innovative programs etc. and then bring these skills back to Tasmania.
4. Tasmania could fund a Registrar training position at Forensicare.
5. Tasmania could fund a joint academic position/ senior lecturer position in conjunction with Forensicare/Monash University.
It is outside the scope of the Sentencing Advisory Council to recommend or determine the utility of any of the aforementioned suggestions. However, scrutiny of these suggestions by the relevant services in Tasmania can put the Sentencing Advisory Council in a position to forward recommendations to the Attorney-General.
Question Sixteen
a) Should Tasmania consider any of the suggested methods to utilise existing services provided in Victoria?
118 From interview with Peter Kelly, Director of Operations, Melbourne Health (September 2011). Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 33 Education & Treatment Programs - Juveniles 6.6.1 INTERNATIONAL access to confidential information. Drabsch considered EDUCATION & TREATMENT that the ‘implementation of such a program in Australia would experience similar problems’.121 PROGRAMS Treatment programs for juvenile firesetters are well In 2002 the National Association of State Fire Marshals established in the United States of America and (NASFM) contracted the University of New Hampshire the United Kingdom. Programs operate either by to offer a distillation of the existing research literature means of the educational or the clinical approach.The into juvenile firesetting, to convene a conference of educational approach focuses on informing individuals researchers, fire, justice and clinical professionals and of the adverse effects of fire and is useful for the to deliver a report to NASFM.122 This comprehensive juvenile firesetter who is exhibiting ‘fireplay’. The report makes relevant and useful findings in relation clinical approach is over and above education in that it to intervention, control and treatment of juvenile attempts to change the behaviour of the firesetter - this firesetters. Relevant findings are as follows: approach is suitable for the firesetter who has deeper • That ‘firesetting research literature clearly psychological problems. Following is a brief overview recognises successful intervention, control, and of these programs and a review of any assessments that treatment involves multiple strategies that respond have been made. to firesetting’s multiple origins’.123 6.1.1 Assessments of treatment and intervention • If the risk factors are known with certainty programs in the United States. then the juveniles at greatest risk in engaging in firesetting behaviour can be recognised.124 In the United States in the 1990s the Office of Juvenile
Justice and Delinquency Prevention (OJJDP) funded • In relation to education programs there appears at the National Juvenile Firesetter/Arson Control and times to be confusion as to the target audience. Prevention Program (NJF/ACP Program) in response to • There were numerous psychological and clinical the high number of juvenile firesetters.The components treatment programs existing in the United States,125 that were identified as successful from that program from the clinical literature there were found to be were program management, screening and evaluation, two factors that determined a successful treatment intervention services, referral, monitoring and juvenile program: justice.119 This program encountered difficulties however. Drabsch120 has drawn attention to small departments with limited budgets, dependency on volunteers, 121 Ibid 37. treatment not being effectively monitored and restricted 122 Putman C and Kirkpatrick J. above n 32. 123 Ibid 5. 119 US Department of Justice. Office of Juvenile Justice Delinquency Program. 124 Ibid 5. Retrieved July 2011
140 State Fire Commission. (30 September 2010). State Fire Commission Annual 143 Fritzon K and McEwan T. (2010). Treatment and intervention with adult Report 2009-10, 2. offenders. Cited in Stanley J and Kestin T eds. above n 6, 35. 141 Juvenile firelighter intervention program.Tasmania Service, Government 144 Wolf P and McDonald K. (2010). Treatment and intervention with juvenile of Tasmania Retrieved July 2010 from
It would be expensive to attempt to recreate the JOAP As mentioned earlier if the Youth Justice Division program in Tasmania and given the small population in of the Magistrate Court orders a juvenile to attend Tasmania it may be more appropriate that a juvenile a treatment program it is then supervised by the found to be at high risk of reoffending be case managed Youth Justice Workers in the Youth Justice Division on an individual basis. Consideration could also be of the DHHS. Once an order is made the juvenile is given to the possibility of accessing JOAP in Queensland. allocated to a case worker who can direct the juvenile to a suitable program. If there is no tailored program As no risk assessments have been made on juvenile suitable there is the capacity to direct the offender to firesetters in Tasmania it is not possible to estimate how private psychological sessions - this process already many eligible juveniles there would be per year. Further exists for other problematic offenders for which there research into the practicality and feasibility of this idea is is no treatment program. For the moment this may be outside the scope of this Consultation Paper. the only appropriate course of action available.
Given arson and bushfire arson continually resurface Question Seventeen as a priority on the political agenda it should only be a matter of time before serious consideration will be a) Should Tasmania provide a program similar to given to a suitable treatment program for juvenile JOAP in Queensland? firesetters in Australia. Considerable funding is now being invested in the creation of suitable programs for b) Should Tasmania investigate the feasibility adult arsonists in the UK and Australia. of offenders in Tasmania accessing JOAP in Queensland? In the meantime Tasmania may need to continue discussion as to how a program could be developed and implemented in the Tasmanian context. Otherwise 6.5.2 Item Eighteen – Tasmania make further it could investigate the opportunity for Tasmania to investigation as to a suitable treatment program utilise services provided from other specialist services for juvenile firesetters and the appropriate service like JOAP or those offered to adult arsonists from provider to deliver a program in Tasmania? Forensicare in Victoria (see Item 16 at 5.5.4). JAOP may be unsuitable given research indicates there is need for two distinct programs and given the Question Eighteen population of Tasmania. The question of utilising JOAP in the interim has been left open for consultation. Should Tasmania investigate a suitable treatment Still, Tasmania has no treatment program available for program for juvenile firesetters and the juvenile firesetters. So far in Australia there has not appropriate service provider to deliver a program been a program developed based on the identified motivations and area of treatment need.147 Fritzon et in Tasmania? al note that despite the evidence from international research that treatment programs offer promise for juvenile offenders, Australia still remains ignorant to the extent of juvenile firesetters and the identification, assessment and treatment approaches that could be
147 Fritzon et al. (2011). Juvenile Fire Setting: A review of the Treatment Programs. Psychiatry, Psychology and Law 18(3), 395-408. 148 Ibid 405. 38 Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) Community Information & Education Programs
7.17. THE RECENT TREND TOWARD crime by targeting the community). Although there is FIRE PREVENTION now a clearer focus toward applying crime prevention techniques to fire related offences these practices are The recent trend in Australia has been to pursue crime not new in Australia. An overview of strategies that prevention strategies to reduce arson and bushfire have been successful has been made by Muller, these arson. This is a move away from the past where the include: bulk of the resources and activity were targeted at the recovery stage.The recovery stage is when recovery • Controlling access points and reinforcing and repair of the damage takes place if a fire event guardianship over easily accessed forestry areas cannot be stopped. • Fuel reduction and prescribed burning
As noted by McEwan ‘the focus of Government • Fencing areas, upgrading alarm systems, video attention at present appears to be on improving surveillance and lighting in schools primary prevention, with enhanced environmental • Removal of abandoned cars management, policing and fire services practices being • Public education programs to prevent cigarette central to reducing over incidence of deliberate fire related bushfires setting.’149 • Mapping software to report data to indicate areas that experience high frequencies of deliberate fires The approach in Tasmania aligns with the recommendations of the VBRC and the National Work • Australian fire agencies with community safety Plan to Reduce Bushfires in Australia. This view is clearly and education sessions to promote safety and in line with the trend in the rest of Australia in that awareness many deliberately lit fires are preventable using crime • Targeting arson prone communities prevention techniques. 7.2 COMMUNITY EDUCATION This trend toward prevention strategies and the AND INFORMATION PROGRAMS subsequent recommendations by the VRBC and the National Work Plan to Reduce Bushfires in Australia has IN AUSTRALIA resulted in arson and bushfire arson being viewed with All fire services throughout Australia run a school fire the same crime prevention principles as other crime in education program however, the Fire and Emergency Australia. Crime prevention works on the principle that Service Authority (FESA) in Western Australia has crime is not only in the domain of the criminal justice developed an additional program aimed at juveniles. system; it is a whole of society approach that attempts This program is not delivered through the school to stop crime before it happens. Such strategies system as they generally are when targeting young can focus on situational factors (preventing crime by people, but has been developed specifically for arson targeting the environment) or social factors (preventing prone communities. FESA recognised most of the fires in some areas were being set by juveniles and their 149 McEwan T and Freckelton I. above n 85, 325. Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 39 response was to raise awareness in that community. 7.3 THE CURRENT FOCUS The fundamental difference in this program is that it is ON CRIME PREVENTION IN directed at the arson prone community as a whole as opposed to schools or the individual firesetters.The TASMANIA program is broken into three phases; identification, 7.3.1 TFS School Education Program implementation and evaluation. Areas experiencing The TFS has a School Fire Education Program which in elevated levels of fires were identified on a suburb and the period 2009-2010 reached 17, 149 primary school street level. Local partners then convened to discuss children in 89 schools. The New School Fire Education the objectives and strategies.150 The implementation resources were introduced into the program at the was a short, intensive awareness campaign particularly beginning of the 2010.153 The purpose of this program focusing on children and families in the area.This is to promote awareness for fire safety and what to do included primary school presentations, shopping if a fire breaks out in the home or the bush. centre displays, door knocks, information flyers and fridge magnets encouraging the community to report 7.3.2 TFS and Crime Management Unit, any suspicious information. Another important Tasmania Police consideration in this program was the recognition of the importance of the presence of uniformed police and TFS state that their efforts in relation to arson and fire service personnel with the purpose of reinforcing deliberately lit fires are predominately focussed on the the message that arson is a serious criminal act and it result of the VBRC findings and its recommendations. will be treated as such. Monitoring the occurrence of One of these recommendations was to establish a bushfires after the specific area was targeted was a built closer liaison between fire services and police in the 154 in component of the evaluation phase. The evaluation identification and prevention of serial arson. As a phase consistently showed that in all area deliberately lit result a project was instigated to improve relationships bushfires declined following intervention.151 and include the Crime Management Unit of Tasmania Police in the investigation process. Although developed specifically for WA, Muller asserts that the program had a number of elements that could This project aims to identify strategies and processes to easily be used by other communities and agencies in enable improved analysis of data for the purpose of serial the development of other programs.The key elements arson identification and the development of intervention would include: an awareness of hotspots, high levels of programs. The observation of common threads and consultation with the community, coordinated response patterns has resulted in strategies that have proven with fire service and police, blanket coverage of the successful in the identification of offenders. In 2010 the community, a consistent message and an evaluation analysis of data from the previous ten years revealed framework.152 one person being subject to six major household fires that, in isolation, had previously been attributed to accidental causes.The data interrogation resulted in the identification of arson for the purpose of fraudulent insurance claims. In a separate analysis of different data, a pattern revealed the simultaneous burning of a vehicle and the theft of another in the same suburb. Further investigation of this pattern exposed drug couriers burning vehicles to destroy evidence after a drug delivery then immediately stealing another vehicle in the same suburb to perform another delivery somewhere else. TFS and Tasmania Police are continuing to scrutinise their 150 Partners include FESA, the WA Police Service, the Department of available data and pursue other methods to detect and Education and Training, Catholic Education, local government and community volunteers. predict both structural and bushfire arson. 151 Smith R. (2004). Community centered bushfire (arson) reduction. Paper presented at 11th annual AFAC conference and inaugural Bushfire CRC conference, Perth Western Australia. Cited in Muller D. above n 10, 28. 153 State Fire Commissiom above n 140, 6. 152 Muller D. above n 10, 29. 154 Victorian Bushfires Royal Commission. (2010). above n 2. 40 Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) TFS have clearly taken steps in line with have not, in the past, been confined to community recommendations by the VBRC with improvement information and education programs. Indeed, the trend of data collection and its analysis.The TFS are utilising is to consider situational factors and social factors as this data for a twofold purpose; to detect crime and well as data collection and mapping software. Both to predict patterns of behaviour. Indeed, as noted by the TFS and Tasmania Police are committed to the Lansdell et al arsonists report they are more likely to recommendations of the VBRC and arson prevention be deterred by a greater risk of apprehension than by techniques. They recognise that this crime should not tougher penalties.155 just be left in the hands of the criminal justice system, that there is a range of policy implications as different 7.4 IS THERE THE NEED FOR agencies are concerned with dealing with the arsonist FURTHER COMMUNITY and their potential targets. In this way Tasmania achieves EDUCATION PROGRAMS IN a wholistic community and a society approach to arson prevention. TASMANIA? 7.4.1 Item Nineteen – Tasmania implement Whether there is a need for further community further community information and education education programs to be initiated as a part of this programs in Tasmania. response is outside the scope of the Sentencing Advisory Council. The question is better put to those In the course of this project TFS were asked whether a implementing and prioritising policy and direction in this program similar to that in Western Australia would be area. suitable in the Tasmanian context. The TFS welcomed a program similar to that run by FESA in WA.They believe specific Tasmanian communities would benefit Question Nineteen from arson education and awareness strategies directed towards sectors of the community identified as being at Should Tasmania implement further community risk. TFS drew attention to the importance of utilising information and education programs in local knowledge to identify and respond to arson hot Tasmania? spots.They state that ‘fireys’ integrate readily in the community and elicit a level of trust, their knowledge is integral in targeting the ‘culture’ of the community. However, attention is drawn to the fact that this work cannot be left to the volunteer firefighters living in the community so these programs are resource dependant.
TFS made several points relevant to prevention strategies and to this paper:
• The importance of the profile of the uniform should not be underestimated; • it is imperative that young people understand the consequences of their actions when firesetting; • education and awareness strategies need to target lower socio economic groups in Tasmania; • for some adults (the ones that set fires for criminal reasons) the only real deterrence is the guarantee they will get caught. 156
Prevention and deterrence at the primary level
155 Lansdell G et al. above n 44. 156 Interview with Andrew Comer AFSM Regional Chief and Jeff Harper Deputy Regional Chief,Tasmania Fire Service (12 May 2011). Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 41 Appendix A
Model Criminal Code Officers Committee - Model Criminal Code
4.1.7 Arson conveyance means motor vehicle, motorised vessel (1) A person who: or aircraft. (a) causes damage to a building or conveyance by means of fire or explosive, 4.1.8 Bushfires and (1) A person: (b) intends to cause or is reckless as to causing, damage to that or any other building or (a) who causes a fire, and conveyance, Is guilty of an offence. (b) who intends or is reckless as to causing a fire, and Maximum penalty; Imprisonment for 15 years (c) who is reckless as to the spread of the fire to (2) A person who: vegetation on property belonging to another, (a) makes to another person a threat to damage any building or conveyance belonging Is guilty of an offence. to that other person or a third person by Maximum penalty; imprisonment for 15 years. means of fire or explosives, and (b) intends that other person to fear that the (2) In this section: threat will be carried out or is reckless as to causing that other person to fear that the threat causing a fire includes: will be carried out, (a) Lighting a fire Is guilty of an offence. Maximum penalty; Imprisonment for 7 (b) Maintaining a fire years (c) Failing to contain a fire, except where the fire (3) In the prosecution of an offence against was lit by another person or the fire is beyond subsection (2) it is not necessary to prove that the control of the person who lit the fire. the person threatened actually feared that the threat would be carried out. spread of a fire means spread of a fire beyond (4) In this section: the capacity of the person who caused the fire building includes: to extinguish it. (a) a part of a building, or (b) a structure (whether or not moveable) that is used, designed or adapted for residential purposes. 42 Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) Appendix B
Indictable arson and fire related offences in Australia Act Section Offence Maximum Penalty COMMONWEALTH Crimes Act 1914 29 Intentionally destroying or damaging any Commonwealth 10 Years Destroying property or damaging Commonwealth Property ACT Criminal Code 2002 404(1) Causing damage to a building or vehicle by fire or 15 years or 1,500 penalty units Arson explosive and intends to cause or is reckless about or both causing damage to that or any other building or vehicle 404(2) Makes a threat to damage a building or vehicle by fire or 7 years or 700 penalty units explosive causes, fear to the person receiving the threat or both 405 Intentionally or recklessly causes a fire and is reckless 15 years or 1,500 penalty Causing bushfires about the spread of the fire to vegetation or property Units or both belonging to someone else Crimes Act 1900 117(1) Destroys or damages any property by fire or explosive 25 years Arson with intent to endanger the life of another Crimes Act 1900 117(2) Dishonestly, with a view to gain, destroys or damages by 20 years means of fire or explosive NEW SOUTH WALES Crimes Act 195 Intention or reckless damage to property by fire or 10 years 1900 Destroying explosive or damaging In company 11 years property by fire During public disorder 12 years or explosive 196 Destroying or damaging property intending to cause 14 years Destroying or bodily injury by fire or explosive damaging with during public disorder 16 years intent to injure 197 Dishonestly destroying or damaging property by fire 14 years Dishonestly with a view to making gain Destroying In public disorder 16 years or damaging property 198 Destroying or damaging property with the intention of 25 years Destroying endangering life or damaging property with intention of endangering life
Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 43 203E Intentionally causes a fire and is reckless as to the spread 14 Years Bushfire offences to spread NORTHERN TERRITORY Criminal Code Act 239 Unlawfully setting fire to building, ship, vegetable Life Arson produce, mine or aircraft 240 Attempting to unlawfully set a fire, or close to anything, 14 years Attempts to in accordance with section 239 commit arson 241 Unlawfully setting fire to crops, vegetables, trees, or 14 years Setting fire to pasture( indigenous or cultivated) crops and growing plants QUEENSLAND Criminal Code Act 1899 461 Wilfully and unlawfully setting fire to building or Life Arson structure, vessel, fuel, cultivated vegetable produce, mine, aircraft or motor vehicle 462 Attempting to set a fire contrary to section 461 14 years Attempt to commit arson 463 Wilfully and unlawfully setting fire to crops, indigenous 14 years Setting fire to or cultivated hay or grass, indigenous or cultivated trees, crops an growing saplings or shrubs, or heath, gorse, furze or fern plants SOUTH AUSTRALIA Criminal Law Consolidation 85 Intending to damage property or being recklessly Life Act 1935 Arson and other indifferent as to damage without lawful authority by fire property damage or explosive Threatens 15 years 85B Intending to cause or recklessly indifferent as to causing 20 years Special provision a bushfire for causing a bushfire TASMANIA Criminal Code Act 1924 268 Unlawfully setting fire to any structure, vegetable 21 years Arson produce 268A Unlawfully setting fire to any vegetation, living or dead 21 years Unlawfully setting (including forest, tress, saplings, shrubs, grass, litter, bark, fire to crops , logs, etc) forest, moorland, peat, &c. 269 Unlawfully setting fire to any property not covered by 21 years Unlawfully setting sections 268 or 268A fire to property 269A Unlawfully placing flammable or combustible material 21 years Causing fire or doing any other act for the purpose of causing a fire with intent to with the intent to injure any person or property injure person or property VICTORIA Crimes Act 1958 197 Destroying Intentionally and without lawful excuse destroying or 10 years or damaging damaging property by fire 15 years property intending to endanger the life another, with a view to gain 10 years 197A Committing arson as defined in section 197 and thereby 25 years Arson causing causing the death of another person death
44 Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 198 A threat to destroy or damage any property or damage 5 years Threats to destroy own property that will endanger life or damage property 201A Intentionally or recklessly causing a fire, and being 15 years Intentionally or reckless as to the spread of fire to vegetation on recklessly causing property belonging to another a bushfire WESTERN AUSTRALIA Criminal Code Act 444 Wilfully and unlawfully destroying or damaging any 14 years Compilation Act 1913 Criminal Damage property by fire 554 Attempting to commit an offence or inciting another to 7 years Attempts and commit an offence incitement
Arson and Deliberately Lit Fires - Consultation Paper No 1 (December 2011) 45 References
Anderson J and Lansdell G. (2010). The evolving legislative response Muller D and Stebbins A. (2007). Juvenile arson intervention programs in to bushfire arson.‘Advancing Bushfire Arson Prevention in Australia; Australia. Trends and Issues No 335. Canberra: Australian Institute of Report from a national Symposium, 25-26 March 2010’. MSI Report Criminology. 10/3, Monash Sustainability Institute, Melbourne, Australia. Parliament of NSW. (2002,April 12). Second reading speech - Hansard, Australian Institute of Criminology. (2004). Motives for committing Legislative Assembly. New South Wales: Government Printer. arson: part 1 – general arson. Bushfire Arson Bulletin No 4. Canberra: Palmer E, Caulfield L and Hollin C. (2005). Evaluation of interventions Australian Institute of Criminology. with arsonists and young firesetters. London: Office of the Deputy Australian Institute of Criminology. (2005). Preventing juvenile firesetting. Prime Minister. AICrime Reduction Matters No 39. Canberra: Australian Institute of Palmer E, Caulfield L and Hollin C. (2007). Interventions with arsonists Criminology. and young firesetters: A survey of the national picture in England and Australian Broadcasting Commission. (2009). Rudd angrily denounces Wales. Legal and Criminological Psychology 12 (1), 101-116. ‘mass murder’ arsonists. ABC News, Melbourne. Retrieved October Prichard J. (2010). Net-Widening and the Diversion of Young People 2011 from < http://www.abc.net.au/news/2009-02-09/rudd-angrily- From Court: A Longitudinal Analysis With Implications for Restorative denounces-mass-murder-arsonists/288018>. Justice,Australian and New Zealand Journal of Criminology, 43 (1), 112- Brett A. (2004). Kindling theory in arson: How dangerous are 129. firesetters? Australian and New Zealand Journal of Psychiatry, 38, 419- Putman C and Kirkpatrick J. (2005). Juvenile Firesetting:A Research 425. Overview. Washington DC: U.S Department of Justice. 2 Retrieved Commonwealth Attorney-General’s Department. (2009a). National June 2011 from < www.ojp.usdoj.gov/ojjdp>. work plan to reduce bushfire arson in Australia. Canberra: Sentencing Advisory Council. (2008). Suspended Sentences. Final Commonwealth Attorney-General’s Department. Report Part 2 Summary. Melbourne: Sentencing Advisory Council. Department of Health and Human Services, Government of Tasmania, Sentencing Advisory Council. (2009). Sentencing trends for arson in the Forensic Mental Health Services. Retrieved July 2011
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