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Teens in custody rarely a good idea

Who makes most of the decisions that see teenagers in detention? Courts? No, it is police officers authorised to make bail decisions when someone is arrested. More that 50 per cent of teenagers charged with crimes spend less than a day in detention. This is because they get charged, refused bail by police and then released on bail by the Children’s Court later that day or the next day.

The table below shows that the most common time spent in custody (mode) and the point where 50 per cent of times are longer and 50 per cent are shorter (median) are both one day. What this means is that some young people serve lengthy times in custody which bumps the average up.

Source: DAGJ/JJ RPELive Database. Extracted 24 Sept 12. As this is taken from a live database, figures are subject to change. Unknown ATSI Status not included.
Source: DAGJ/JJ RPELive Database. Extracted 24 Sept 12. As this is taken from a live database, figures are subject to change. Unknown ATSI Status not included.

Some teenagers commit serious offences, or continue to commit a range of offences. It is important that the community is protected from further crimes by these young people. A bail decision involves making a risk analysis about whether they will commit further serious offences. It isn’t only the interests of the young person that needs to be considered.

To be fair to the police who make bail decisions, there is usually more information available, and presented more persuasively by a lawyer, when a magistrate makes a bail decision. Sometimes a parent, who wouldn’t come to the police station because they were so annoyed at their kid, will now support them. Sometimes a juvenile justice worker presents a plan aimed at keeping them out of trouble. Nevertheless, in most cases the situation isn’t much different from when they were at the police station.

Why is a short time in custody a bad thing? There are a few reasons. Being locked up rarely teaches the kind of kid who gets to that point a lesson. More often it “contaminates” them by introducing them to more experienced criminals, providing a network of associates with whom to commit further crimes. It also “inoculates” them by lessening the fear of going into custody. They think that a day inside wasn’t too bad, so the threat of custody as a deterrent to crime is reduced. For a small number of teenagers, custody is a good thing. It prevents them hurting others or breaking into their homes. It means that some attempt to deal with causes of offending – alcohol or drug problems, homelessness, mental illness – can be made.

What is the solution? Police who make bail decisions need to deal with young people as teenagers, not adults. It is sometimes easy to forget that we shouldn’t expect them to be as responsible as adults. Teenage offending is also more impulsive and opportunistic that adult offending, so they may be less likely than an adult to do the same thing again. There is also a community interest in teenagers being kept out of custody. It is rarely a good thing in the long run.

Police also need to be confident that when making bail decisions they can take risks and not be subject to unwarranted criticism if a well considered bail decision ends up being wrong. This involves support and leadership from their superiors.

Another important area that can fairly easily be changed is what happens when teenagers breach their bail conditions. Sometimes they will commit a further offence and sometimes the breach will be serious. In these cases bail refusal is justified. In other cases the breach is minor – being a bit late home after curfew, staying at a relative’s house rather than being home as required. In these cases a warning or arrest and release to fresh bail is the appropriate way forward. A study by Charles Sturt University in 2009-10 showed that, in a sizeable sample group, all kids who breached their bail were refused bail by police. Fortunately, recent statistics show that fewer kids are being locked up for breaching bail when they haven’t committed a further offence, but there is still room for improvement.

Sometimes the problem with breach of bail is avoidable. The bail condition shouldn’t be there in the first place. Sometimes conditions such as curfews or a requirement of regular reporting to police are unnecessary or too onerous. If the condition isn’t there in the first place it can’t be breached.

For a small number of teenagers the problem is much more serious. These are the young people whose criminal offending is tied up with lack of a parent or other carer, alcohol or drug addiction, homelessness or chronic truancy. For these kids there needs to be immediate assistance. Unfortunately, this is rarely the case. It is very rare for the Department of Family and Community Services to treat homelessness of a teenager as a matter of concern. The waiting list for residential drug and alcohol rehab programs is 6-12 weeks. Kids suspended from school often aren’t given much support in getting into other forms of education or training. Resources here would stop many from developing lengthier criminal careers and spending long and expensive periods in custody.

I am a Magistrate in the Children’s Court. I don’t get it right all the time. I’m human. What I suggest is not going to increase criminal offending. Probably it will reduce long-term offending. It doesn’t need a change of bail laws, just a change in police practices. For a few kids it needs resources spent preventing their offending, not dealing with the results.

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