Youth Offenders – Considering Children in Crime

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Cassandra Knight-GrullThe article Youth Offenders – Considering Children in Crime is written by Cassandra Knight-Grull, Lawyer, Doogue + George Defence Lawyers.

Cassandra holds a Juris Doctor from RMIT University and a Bachelor of Arts with Honours from Monash University. She was previously a research assistant to criminal barristers at Crockett Chambers where she dealt with indictable offences in Victoria, Tasmania, and Queensland.

Cassandra has also volunteered at Youthlaw and the Neighbourhood Justice Centre as well as the Sex Worker Education and Advocacy Taskforce in Johannesburg, South Africa.


Youth OffenderYouth crime has been a media talking point going back decades in Australia. Nowadays, it is exhaustively trumpeted from all sides of politics.

In the first months of 2023 and within weeks of each other, Victorian premier Daniel Andrews made public his intention to raise the age of criminal responsibility, alongside Queensland premier Anastacia Palaszczuk announcing her intention to override the Human Rights Charter to broaden the range of offences and increase penalties for young people.

Meanwhile the media has clearly, and dramatically, chosen sides in the debate.

Take Sky News, which criticized Queensland’s proposal for not going far enough, calling for more mandatory sentencing and higher penalties. The article interposed images of crying victims alongside graphic CCTV stills of young people in hoods and masks. The article cites a ‘criminal justice and criminology expert’, who wants to see more young people spending more time in custody – somewhat unbelievably, in order to complete rehabilitation programs.

Compare that to, for example, the coverage from the Guardian – who lamented the ‘tough on crime’ attitude as ineffective, and cited a host of legal and scientific experts to point out that recidivism rates among children put in custody are incredibly high. In other words, they aren’t going to be rehabilitated in a prison cell.

The same sentiments were trumpeted when the NT government passed similar reforms back in 2021, which removed the presumption of bail for first time offenders, and restricted a court’s power to refer a child back to police for diversion. The policies reflect a kind of ‘zero-tolerance’ approach to kids who don’t manage a perfect track record on their first time through the system.

Again, the response (and language) was just as stark – politicians criticizing the government for being “on the side of the offender”, while Amnesty International labelled it a “callous, racist legislative crackdown”.

Crime can be an easily divisive subject. It is emotive, offers a clear narrative of good and evil, and it plays on popular social anxieties. Add to this a seemingly ever-growing divide in understanding between the young and the old and you have a front-page worthy topic. Channel 9’s news website has an entire category dedicated to “Youth Gangs”.

What is lost in all this noise is the reality that these are, in fact, children.

Kids and Criminality

For example, among Queensland’s proposed reforms was an increase in penalties for young people who make social media posts about their crime – a move that screams we don’t understand why young people do things. The problem is this – research tells us that children do not share an adult’s capacity to appreciate the criminality of their actions or to approach risk in a logical way. The underdevelopment of their pre-frontal cortex, the part of the brain that helps us make rational choices and assess risk,1 is partly to blame.

This means that increasing penalties and mandatory sentencing does not work as an effective deterrent. It also means that most children grow out of offending behaviour as they develop.2 How seriously they misbehave, and whether that evolves into criminal behaviour, really comes down to their personal experiences.

What we know, thanks to a plethora of studies, is that the children committing serious crimes are some of our community’s most vulnerable.

Kids in detention disproportionately suffer from cognitive and neurological disabilities, which along with making custody more difficult, can play a role in criminal behaviour. Foetal Alochol Spectrum Disorder for example, which is seen in incredible numbers among incarcerated children, is known to impact on impulse control and ability to manage emotions. Notably, it is the view of the United Nations that children with disabilities or developmental conditions like this should not be in the criminal justice system at all.3

They also overwhelmingly come from backgrounds of trauma.4 This report of the Victorian Youth Parole Board 2016 found that of all children in custody, two thirds were victims of abuse or neglect. The interaction between trauma and normal childhood neurodevelopment is also a significant basis for the Raise the Age Campaign – as the Royal Australasian College of Physicians noted in its submission to the Age of Criminal Responsibility Working Group: the kinds of behaviours considered to be criminal in kids aged 10-13 reflect the ‘typical neurodevelopment’ of children with history of trauma.5

It is an internationally recognised fact that prison harms children, exacerbates existing mental health conditions and puts them at greater risk of self-harm. Trauma experts note that prison has a re-traumatising effect by exposing children to violence and negative social influences. On top of that, or perhaps because of that, it makes them more likely to reoffend.6

What is the Answer?

Putting aside complex questions about criminality and the moral culpability of children, this isn’t really a debate about what is fair – although that should come into it. It is really a debate about what actually works. At present, it seems that this is being ignored in favour of political point scoring.

There are a whole host of viable solutions for addressing youth crime, too many to cover in this blog. But bringing more children into the justice system, for longer, with harsher penalties, is not the answer. We need to empower police, Judges and Magistrates with more options for dealing with young offenders, not confine their ability to respond to the specific child in front of them. And as Professor Tamara Walsh from the University of Queensland’s School of Law remarked in a recent article, if you make the community look attractive to young people, it might remove the imperative to commit crime.
 
 


[1] Northern Territory, Royal Commission into the Detention and Protection of Children in the Northern Territory, Report of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory, 17 November 2017, Vol. 1, p. 133, footnotes 135-6.
[2] Northern Territory, Royal Commission into the Detention and Protection of Children in the Northern Territory, Report of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory, 17 November 2017, Vol. 2B, p. 413.
[3] United Nations, Committee on the Rights of the Child, General Comment No. 24 (2019) Children’s Rights in the Child Justice System, 18 September 2019, p. 7.
[4] Australian Child and Adolescent Trauma, Loss and Grief Network, Trauma, young people and juvenile Justice, 15 April 2013, https://www.ics.act.gov.au/__data/assets/pdf_file/0020/1323524/Trauma-and-juvenile-justice-in-Australia.pdf
[5] Royal Australasian College of Physicians, Submission 19, February 2020, p.3.
[6] See eg. Justice Policy Institute, The Dangers of Detention: the impact of incarcerating youth in detention and other secure facilities, 2006, p.4-7.

 
 
Date Published: 30 March 2023
 
 

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