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Police v JW , 11 April 2008, District Court, Lower Hutt, Judge Walker, CRI 2007-232-000146

Name: Police v JW
Unreported
File number: CRI –2007-232-000146
Court: District Court
Location: Lower Hutt
Date: 11 April 2008
Judge: Judge Walker
Charge: Arson
CYPFA:
Key title: mental impairment, disbility

Case Summary:
Sentencing of JW (14) in the DC following a guilty plea on three charges of arson, a ‘purely indictable’ offence. J had set fire to 3 schools in October 2007.
At depositions it was found there was a case to answer. YC jurisdiction was not offered under s275 as JW was 14 at the time of the offending (a conviction and transfer to the DC under s283(o) being available only to young people 15 years and over). He was then dealt with by a jury warranted DC Judge (the original YC Judge) after pleading guilty.

1. As recorded when JW first appeared for sentence on 5 March 2008: (emphasis added)

• A psychological report, dated 30 January 2008, described JW as having limited intellectual function, having consumed alcohol and butane before lighting the fire, and as having had a complex and difficult childhood.
• The psychological report also recorded that JW had displayed genuine empathy for the victims of his offending and remorse for his actions.
• The report recorded that JW is vulnerable to the influence of others due to his low level of intellectual functioning.
• JW has a mild intellectual disability and so he is at least a candidate for a Compulsion Order, under the Criminal Procedure (Mentally Impaired Persons) Act 2003.
• While it is agreed that an intensive supportive wrap-around programme for JW was required, because of his age (14) there was nowhere for him to go which would deliver the level of control and intervention required (he would have to be placed with adult men who suffer from intellectual disability).
• “Clearly, what is missing is a facility to provide care and assistance to young people. He cannot be the only young person in New Zealand who needs this level of support.”
• “The public would be astonished … a person from whom the public need protection, at age 14, who cannot be offered any facility, other than jail, to protect the community…and a sentence of imprisonment for a 14 year old with an intellectual disability would be an inhumane response for any criminal justice system.”

The Judge requested an interagency meeting to be convened to search for an alternative to imprisonment.

2. As recorded on 20 March 2008, when the Judge was advised that no alternative could be found:

• Judge Walker made it clear he would resist being placed in the position where prison was the only option when ‘Health, Community Correction’ and ‘Child, Youth and Family’, (CYFS) have failed to make provision for the containment of a young offender with intellectual disability. Each conveyed the impression that the responsibility lay with another department.
• The Judge intended to impose a sentence of electronic monitoring, and intensive supervision or other condition of detention to ensure the delivery of effective intervention.
• The only available address was a residential programme, which would need to be urgently assessed and consent would have to be obtained from its providers (which would be subject to funding).
• CYFS and Corrections and Health need to recognise that they each have a responsibility, and that they need to ‘depart from the “silo” approach to funding that too often obstructs appropriate responses by the Court.’
• The Judge expected to be provided with a suitable alternative on 31 March at sentencing

3. Final appearance: 11 April 2008:
An alternative community-based sentencing was proposed. This would entail intensive supervision and community detention at a residential programme, which would provide a 24-hour secure environment with a one-on-one tracker at all times.

His Honour, Judge Walker commented that the Criminal Procedure (Mentally Impaired Persons) Act 2003 has been in place for 5 years and the failure by the State to provide services for intellectually disabled young persons is discriminatory to those young people.
The Judge also commented that the Ministry of Health made no contribution to the proposed sentence and ‘provision of assistance to the intellectually disabled must surely fall to that Ministry.’

Decision:

The only relevant purposes of sentencing are the protection and rehabilitation of JW.
The Judge took into account the guilty plea and that JW had spent 6 months in custody.
The considerations in relation to ss54(c) and 69(c) of the Sentencing Act 2002 are satisfied in this case.
JW was sentenced to 2 years intensive supervision on the following special conditions:

• To attend any programme or course as directed by the Probation Officer, including Community Mental Health or other health provider.
• To attend counselling or treatment programmes as directed by the Supervising Probation Officer.
• To reside at an address approved by the Supervising Probation Officer.

In addition JW is to serve 6 months community detention at the residential programme with a curfew from 10pm to 5:30am each day of the week, starting 16 April 2008.
The Judge recorded his admiration for the co-operative work of counsel and CYF in this case, which demonstrated the value of a cross-agency problem solving approach.

Application for name suppression granted.