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One way to significantly reduce juvenile incarceration in NSW right now #raisetheage

I was 11 years old when I committed my first crime. When I was 12years old, I was chased by police after riding in a stolen car and hid out at my neighbours house, ill never forget when the police came looking for us my neighbour a 13yo girl at the time, refused multiple times to let the police in when they ever so politely asked if they could come in and have a look around (sweating bullets) I was listening from the top of the stairs and was so scarred I hid out in her house all weekend. I was so lucky I was never picked up as a child and caught in that cycle, or my journey and story could look very different today.

Today, still in NSW we are campaigning to #raisetheage and I am sombrely reminded of how critical this is. I spent years working in the juvenile justice system in NSW, where I would witness children come into custody when what they really needed was healing and safety, I remember one young girl being arrested and shoplifting on bail for stealing deodorant and a mars bar from 7-11 and being transported all the way from the QLD/NSW Border to Sydney. I saw children who had been through the most complex of trauma, living homeless or dealing with issues around their mental health criminalised and incarcerated.

Today I sit with much of the long-term impacts of this as I just hopped off the podcast with Dylan Voller, many who would know is a childhood survivors of institutional abuse and some might say torture at the hands of staff and the NT justice system. Those that who, despite a royal commission and their recommendations both continue to still operate and too employ some of those same people today.

It is hard to maintain and work within a system to support the development of policy and strategy that can meaningfully impact change. Particularly when we are seeing recommendations after recommendations appear to create little momentum.

For much of us, directly impacted by the policies and systems that disproportionately impact out people it is that systemic disappointment that clouds our confidence in things like national conversations around the ‘voice’, this is not the place for that yarn but if you have got this far I would encourage you to follow the work of Dr Amy McGuire or Vanessa Turnbull-Roberts.

Dylans story is a tragic one, and addressing the complex and systemic issues that let him and other children down is one we are here for at Impact Policy. Dylan shared some great insights around policy and service delivery that works with young people with complex needs, identifying experiences in Sydney with services like Weave Youth and Community Services that provide holistic support for young people that is trauma informed and Culturally safe.

But before we go down that road of systemic change, lets start with keeping our kids out of custody completely to begin with, Dylan Voller was 11 years old when he was first arrested for throwing a rock through his mums window. At 11, for that ‘offence’ he was transported all the way from Alice Springs to Don Dale in Darwin! and continued as a child to make multiple trips again and again as a child often for breaching bail.

Dylan is very much still living with the impacts of the trauma and abuse he has experienced as a child and at the hands of the system, he is navigating his own healing journey and we hope that with the right support and people around him that he finds his sense of peace.

Dylan gave up his own time and refused to be paid anything to share his story in the hope that if one person heard this whether a young person, parent or decision maker that it might have an impact. And I am reminded again, of the strength of character that remains often inside of the people that have experienced the most horrific of things.

That said, here at Impact Policy we are passionate advocates for raising the minimum age of criminal responsibility and hope that through this blog you can understand this policy issue more clearly, the reasons and purpose for why this is a significant issue in social policy right now and that together with us you can join us in calling to #raisetheage

Following sustained calls by activists, politicians and the broader public, in November 2022, the Northern Territory became the first Australian jurisdiction to pass a bill to raise the minimum age of criminal responsibility (MACR) from 10 to 12. While this move has overwhelmingly been welcomed as a move in the right direction, it falls significantly short of the United Nations benchmark, which sets the minimum age of criminal responsibility at 14. A 2021 poll of over 1,000 Australians found 56% supported increasing the age to 14.1 Several states have subsequently taken steps to raise the age, but will these measures be enough?

The minimum age of criminal responsibility in Australia is defined as the age below which a child is deemed incapable of having committed a criminal offence. In addition to the minimum age, the Australian common law doctrine of doli incapax is a rebuttable presumption that a child between the ages of 10 and 14 is incapable of crime, aiming to provide further protection for young people. The United Nations, however, argues that this precedent is applied inconsistently and has failed to provide protection for 10 to 14-year-olds, with the 2019 Children’s Rights Report finding “limited evidence” that the principle is routinely applied in practice. Currently, in all Australian jurisdictions*, children as young as 10 can be arrested, charged with a crime, and imprisoned.

While the Northern Territory’s move to raise the MACR to 12 may be seen as an important step toward creating change within the justice system, in reality it does little to reduce incarceration rates. Data from the AIHW2 shows that, for 2019-20, 43 youths in custody across Australia were aged 10 and 11, while there were 499 youths in custody aged 10-13. Notably, in the NT where this change will be made, during this period, there were no incarcerated youths aged 10 or 11.2 This has led to accusations that this legislative change is simply window dressing, rather than a reflection of any real intent to keep children out of the justice system.

Research from the Bureau of Crime Statistics and Research (BOCSAR) shows that young people were (consistently over a ten-year period) more likely to proceed to court (55% in 2021), rather than receive a caution (40%) or a youth justice conference (5%). For Aboriginal youth specifically, the rate of court proceedings was markedly higher - almost 73% proceeded to court, compared to 22% receiving a caution and 5% a youth justice conference. For non-Aboriginal people specifically, 53% proceeded to court, while 43% received a caution and 4% a youth justice conference.

At any time, nearly half of the children under 14 in prison are on remand, awaiting sentencing, and have not yet received custodial sentences. While the overall number of youth in detention has declined over the last five years, 2022 saw a troubling increase from 36% to 51% in First Nations youth incarceration.

This was attributed to an increase in bail refusals. Being remanded separates a child from their family and community, disrupts education and ultimately increases a child’s risk of future offending. Despite not having been found guilty of any crime, these children are subject to the same psychological, social and physical harms as any other incarcerated person. Further, a 2020 report in Victoria found that two-thirds of children on remand did not go on to receive a custodial sentence.

Even if we are simply looking at the dollar value of a remand stay, and ignoring the vast array of serious negative impacts, it is evident that holding children in remand is an extremely costly undertaking. Youth Justice revealed in 2022 Budget Estimates hearings that the cost of holding youth in detention in NSW has risen to $1956 per child per day.4 In response to this alarming data, Greens spokesperson for First Nations Justice Sue Higginson said, “We need to take urgent action to get the small but significant number of children under 14 out of prison.

“This huge expense to taxpayers to keep these young people locked up could be much better spent on developing and expanding diversionary and wrap-around programs that prevent children from coming in contact with the justice system in the first place.

“Across the board we see young people who come in contact with the justice system due to lack of a supportive and nurturing home environment and once they are sentenced to detention, their chances of returning to prison again are exponentially higher.”

Those opposed to raising the age of criminal responsibility often point to uniquely violent and shocking crimes, such as the UK murder of James Bulger in 1993. They argue that, if children are capable of committing such brutally shocking acts, they should be punished accordingly. However, the reality is that extremely violent crimes and acts of homicide committed by individuals under 14 are a shocking, but rare event. They should be treated as an exception, not as a blanket justification for custodial sentencing of minors.

Opponents also argue that raising the age is a response that removes responsibility for poor behaviour. Alternative sentencing methods are able to hold a perpetrator accountable for their actions, arguably more effectively than incarceration. Sentencing methods built on restorative justice principles allow an offender to understand the impact of their actions not simply in terms of legal consequences, but how this has affected their family, community and, where applicable, the victim and the victim’s family.

There can be no doubt that the current low age of criminal responsibility disproportionately affects disadvantaged youth, in particular, Indigenous children. Raising the age, although unable to address these root factors itself, is vital in disrupting the cycle of disadvantage and reoffending.

Co-authored by Katelyn Clarke and Sam Alderton-Johnson for Impact Policy

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