Therapeutic Jurisprudence, Restorative Justice and Bushfire Arson

Bushfires are a regular part of the Australian landscape. Similar fires are also a feature of other areas of the world – such as California and some countries bordering on the Mediterranean Sea.

The hot, dry conditions of summer make the Australian bush landscape particularly fire prone. On Black Saturday – 7 February 2009 – in Melbourne, the temperature reached 46.4 degrees centigrade. Some bush fires have been particularly devastating – causing significant loss of life, damage to private property, communities and flora and fauna. For example, the Black Saturday bushfires in Victoria resulted in deaths and massive destruction in a number of Victorian towns and surrounds. The interim report of the Royal Commission into these bush fires noted that “Reports referred to flames leaping 100 metres into the air, generating heat so intense that aluminium road signs melted. The plume of the fires created a convection effect that generated winds so strong that trees appeared to have been screwed from the ground. One hundred and seventy-three people died in the fires.”

While some bush fires start due to natural causes – such as lightning strikes – others, unfortunately, are deliberately lit. This is the area of bush fire arson.

Last Thursday and Friday at the Monash University Conference Centre in Melbourne I took part in a symposium organised by Monash Sustainability Institute, the Australian Institute of Criminology and others about preventing bush fires. The symposium was opened by the Federal Attorney General of Australia, Robert McClelland. A key feature of the symposium was its multi-disciplinary approach – professionals from the fire services, police, psychology, corrections, criminology and the law explored the different aspects of the motivations behind, detection and investigations into and prosecution and sentencing in relation to bush fire arson. Identifying potential arsonists and greater community education were other matters considered at the symposium. The adequacy of the legislative framework to address the problem was also addressed.

I was both interested and pleased to hear a number of speakers in the introductory session mention the possible role of therapeutic jurisprudence in relation to the disposition of offenders of bush fire arson. How this would occur was not specified but it was an issue that we discussed in a symposium workshop that I co-led on bush fire arson and the courts. It was raised in several contexts – promoting greater victim voice in how courts sentence offenders in such cases, the use of restorative justice and the possible use of problem-solving court type processes.

It is simply not viable to set up a problem-solving court specialising in arson offenders. The numbers do not justify it. For example, over a five year period from 2003-2004 until 2007-2008 there were only 237 people dealt with for arson (structural and bushfire arson) in Victoria. But elements of a problem-solving court program could be used in a mainstream court in relation to suitable arson offenders whose offending does not deserve an immediate prison term. Thus sentencing could be deferred while they undergo treatment with regular court appearances, judicial case management, a multi-disciplinary approach etc, provided community treatment and support services are available and a coordinating mechanism is provided whereby reports as to compliance are provided to the court and any remedial steps implemented. Another option is to have offenders participate in a re-entry court program towards the end of their sentence – in a similar manner to the Compulsory Drug Treatment Centre in New South Wales.

Restorative justice conferences have been used in relation to arson offences. This is an option that could be more widely used in conjunction with traditional court processes or, in appropriate cases, in substitution for court processes. Thus, less serious cases of fire-related offences are dealt with in restorative justice style conferences in juvenile justice cases. RJ processes promote the voice, validation and respect of victims, perpetrators and communities. They provide a mechanism for the parties to receive more information about the offence and its effects on those involved. It can promote apology, forgiveness and healing. It provides a mechanism for victims to be heard and for fire starters to hear about the effects of their actions. It also allows for reparation to be offered and made.

Naturally such cases need to be properly screened. Some fire starters enjoy seeing the effects of their actions and their participation in a conference may produce further trauma for victims. Some victims take their own approach to healing and wish to move on with their lives without engaging with perpetrators. Perhaps conferences which would be the most effective would be those where the perpetrators of arson acted out of a desire for revenge or for other purposes – such as for financial gain - rather than where mental illness was involved.

While the ideal is for potential arsonists to be detected early and for counselling and educational strategies to be employed to prevent the problem, at the other end of the spectrum the courts and the legal system have a role to play in trying charges of bushfire arson and sentencing offenders. The sentencing and subsequent legal processes have a role to play in addressing underlying issues and promoting a more therapeutic outcome for those concerned – whether victim, offender or community. These are issues that deserve further consideration. In fact, as the symposium highlighted, the whole area of bush fire arson needs much more research across a number of disciplines.