Criminal Law

By Kate Gunther


Some people just want to watch the world burn

Renowned as the most liveable city in the world, spacious and pristine Canberra is the envy of many. For those of us lucky enough to live here, we habitually take advantage of the clear skies and beautiful surroundings by dining outdoors, walking our dogs, hiking up our mountains, or cycling through our gorgeous streets. Canberrans are even fortunate enough to live in such proximity to the beach that it often seems as if the entire city flocks to the south coast during the summer holidays.

With such an abundance of outdoor activities at our fingertips, Canberrans are practically spoilt during summer. However, far from enjoying a carefree break this Christmas, like the rest of the nation, Canberrans spent the summer holidays inundated by news of the worst bushfires in Australian history.

With each passing day the devastating scale of the fires in every state became apparent as the media reported on the extensive loss of wildlife, property and the rising death toll. Despite the absence of fires in residential Canberra, the NSW fires were so ferocious that many, if not all, Canberrans have personally experienced the consequences, either by witnessing the raging flames on the south coast and participating in the mass evacuations, or living in the relentless shroud of smoke which has descended upon Canberra in recent weeks.

In the midst of all these events, we are being warned to be vigilant against new bushfires which may occur closer to home. We are being warned to prepare our properties for the worst. And with those warnings comes increasing anxieties in the community as we remember the 2003 bushfires all too well. Although bushfires have not ravaged Canberra this season, the ever-present smoke serves as a constant reminder of the fires raging nearby, and many of us are aware that those fires are slowly, but surely, inching towards our borders.

Given the extreme circumstances, many of us have been left nonplussed at the news that several fires were deliberately lit in Canberra during the Christmas break despite the scorching temperatures reaching 43 degrees and strong winds creating perfect conditions for an uncontrollable bushfire.

In the early hours of New Year’s Day there were six grass fires deliberately lit in the suburbs of Weston and Curtin and a further fire deliberately lit in Yarralumla on 3 January 2020, being the hottest day on record. All these fires were lit during a total fire ban. All of these crimes were publicised on social media and, unsurprisingly, were met with a fierce call for the harshest of punishments. A little more surprising was the type of punishments identified by the furious public. They ranged from mandatory minimum terms of imprisonment to capital punishment (one suggestion being that they should be burned alive).

This call for blood is just one symptom of the noticeably high tensions in Canberra. While the community’s desire to see these perpetrators severely punished is understandable, many of the comments on social media conveyed such blind hatred and bloodlust that, as a criminal defence lawyer, I could not help but become deeply concerned. These people were calling for exceptionally harsh punishments (some of which are not even offered in modern civilised society) without knowing a thing about the perpetrator other than their crime.

Given the senseless nature of the crime, it seems likely a perpetrator would suffer from some manner of severe mental health condition. The law has long recognised the inappropriateness of subjecting severely mentally unwell people to the full force of the law. But I wondered whether the enraged Canberrans on social media would share such a view for arsonists during this terrible bushfire season. It appeared not, as many of the comments identified insanity or mental health as an “excuse” which results in unjustly lenient results.

There is a misconception that pleading insanity or mental health issues is a “get out of gaol free card.”

In Australia, if a person is acquitted on grounds of insanity, the person is detained in a secure psychiatric unit until deemed safe to leave by a psychiatrist. This indefinite detention often means the person is facing a longer term of detention than a person who was sentenced to a term of imprisonment.

Similarly, if a person pleads guilty but raises mental health as an issue at their sentencing proceedings, their mental health may be taken into account as a mitigating factor. Although this may mean the perpetrator receives a slightly more lenient sentence, the entire community benefits from such a result. Having an accurate picture of the entirety of the perpetrator’s conduct and subjective circumstances enables the sentencing Magistrate or to impose a sentence which not only appropriately denounces and punishes their behaviour, but also facilitates their treatment and rehabilitation, necessary to reduce the risk of reoffending.

The ACT Magistrates Court also has the power to refer people to the ACT Administrative and Civil Tribunal for a mental health order in some circumstances. A mental health order is an exceptionally invasive order which can dictate many aspects of a person’s life including restricting their movement and requiring them to take certain medication.

 While the laws of our society treat insane or mentally unwell perpetrators differently to others, it seems the community may struggle to accept this fundamental aspect of modern criminal law when applied to arsonists in the current climate.