By Paul Gregoire and Ugur Nedim
The latest NSW Bureau of Crime Statistics and Research (BOCSAR) custody figures, which relate to the 2021 December quarter, reveal that in this state 43 percent of all young people being held in youth detention are First Nations children.
This is despite Aboriginal and Torres Strait Islander kids only accounting for 5.3 percent of the state’s youth population between the ages of 10 and 17.
This disproportionate rate in the incarceration of Indigenous youths is even more pronounced than when compared to the overincarceration of First Nations adults in this state, which sits at 27 percent of the NSW prisoner population.
Throwing kids in prison, especially at ages as young as 10 to 13, has a lifelong impact that sees them stuck in the revolving door of the criminal justice system, which, in this country, also puts them at a heightened risk of dying in custody.
However, a just released BOCSAR report outlines that an alternative program established for First Nations youths who fall short of the law has resulted in significant outcomes in terms of not having to serve custodial sentences, when compared with being processed via the NSW Children’s Court.
Indeed, participation in the NSW Youth Koori Court (YKC) not only reduces the likelihood that Aboriginal youth will end up inside, but, if the system was more widely applied, it would likely see the overrepresentation rates it was established to reduce drop more broadly across the state.
Rehabilitation prior to sentencing
The Youth Koori Court was established as a pilot program at Parramatta Children’s Court in February 2015.
In May 2018, due to its success, NSW attorney general Mark Speakman announced the program would be expanded to Surry Hills Children’s Court from February 2019 onwards.
Released in April, BOCSAR’s The Impact of the NSW Youth Koori Court on Sentencing and Re-Offending Outcomes report explains that in its time, the YKC has seen 151 young people, and it compares the results of their cases with those of 2,883 First Nations youths processed regularly.
The Youth Koori Court has the same powers as the Children’s Court. However, the key difference is the YKC waits 12 months before sentencing a youth following their having plead guilty or been found to have committed a crime after a hearing.
To be eligible to be seen by the YKC, an offender must be an Aboriginal or Torres Strait Islander person aged between 10 and 17. They must have pleaded or been found guilty, and the youth must be willing to go through this alternate court process.
On being accepted by a panel into the diversionary program, a youth is then assigned a casework coordinator, and from there, a specific action and support plan is developed to address the young person’s risk factors for offending.
This plan is created in consultation with the caseworker, as well as family members, legal representatives and First Nations elders or respected persons, around an oval table in a YKC courtroom. It’s an informal process that avoids legal terminology and keeps hierarchy to a minimum.
Over the time between the plan’s implementation and sentencing, the youth receives assistance, monitoring and further counselling, and this process allows the participant to display remorse, as well as to participate in their rehabilitation.
Participation in the YKC is then taken into account in sentencing. And unlike the Children’s Court process, the magistrate is able to gain a greater understanding of the circumstances that led to the offending, as well as any demonstrated progress towards rehabilitation, rather than potential for it.
A positive alternative
BOCSAR researchers Evarn J Ooi and Sara Rahman compared the outcomes of the 151 cases of the Aboriginal young people who went through the YKC process to that of over 2,800 First Nations youths, who matched its eligibility criteria, yet had their cases decided in the Children’s Court.
The researchers found that those who went through the YKC process were substantially less likely to end up in a youth detention centre. This transpired to a 40 percent reduction rate in the likelihood of ending up with a custodial sentence.
The study found no significant reduction in reoffending. Although, the researchers posit that if the YKC participant numbers had been larger a clearer picture of reoffending rates could have been garnered.
But the research was able to at least confirm in terms of property crime offenders, that they were less likely to reoffend within the first 12 months following the finalisation of their cases.
The report further ascertained that those YKC participants who did reoffend within the first 12 months were 84 percent less likely to be sentenced to time in a detention centre than their counterparts whose cases were processed via the NSW Children’s Court system.
Positive social investment
The BOCSAR researchers outlined that the overall results of the evaluation lead to the conclusion that the NSW Youth Koori Court “is a promising model” that if adopted more widely has the potential to significantly lower the rates of First Nations children in state prisons.
The broadening of the program could be seen by accepting more participants at current locations or via the establishment of new Youth Koori Courts at other sites around the state.
Although, the researchers do stress the “intensive level of resources” the program entails.
But surely when the significant financial costs of imprisoning these children is taken into account, as well as the social costs the incarceration of these young First Nations people is having on their communities as a whole, an investment in such alternatives is not only warranted but necessitated.
Another policy change that the state continues to refuse to make is an increase in the age of criminal responsibility. Today it stands at 10 years old, despite widespread calls for it to be raised to at least, 14 years of age.
And this policy of locking up the very young also disproportionately impacts First Nations children.
Following the release of the report, BOCSAR executive director Jackie Fitzgerald said in a statement that its findings suggest that culturally sensitive case management approaches could result in the reduction of the stark overrepresentation of Aboriginal young people in youth detention centres.
“It is an alarming reality that in 2022, 43 percent of young people in custody are Aboriginal,” said the bureau’s head. “The Youth Koori Court offers a promising model to reduce incarceration rates of Aboriginal young people.”
Image taken from a NSW Government fact page on the NSW Youth Koori Court