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

Offenders with intellectual disability (ID) who commit arson and other acts of fire setting are over-represented in the criminal justice system in Australia, as in many other jurisdictions. The purpose of this paper is to provide insight into the judicial considerations that influence sentencing in these cases.

Case law was utilised to locate and analyse judges’ sentencing remarks for offenders with ID found guilty of an offence of arson. These data were subject to Inductive Content Analysis to establish the major judicial considerations in sentencing.

Seven common issues emerged: general deterrence, seriousness of arson, rehabilitation, sentencing options, moral culpability, protection of the community, and punishment. Judges noted that they handed down reduced sentences to persons with ID relative to the severity of their offending, that they considered people with ID to have low levels of moral culpability, and that these offenders did not provide good examples for community deterrence.

The current study highlights the need for judges to have available a range of sentencing options, including diversion and treatment/rehabilitation programmes for persons with ID, particularly for those involved in more serious offences such as arson.