Introduction by Croakey: National Children’s Commissioner Anne Hollonds is urging the National Cabinet meeting on Friday to take up her call for a new national approach to child justice and wellbeing, and to stop “tough on youth crime” narratives that defy evidence and inflict further harm on children and the broader community.
The urgency of the call was tragically illustrated this week in a Queensland case involving a 15-year-old Indigenous boy with a significant intellectual disability who was, according to the presiding magistrate, on a “sad merry-go-round of offending, incarceration and hopelessness” because of failures by the state to provide him with proper care.
It’s a case that begs the question, especially with this being National Child Protection Week: why don’t we hear from the shock jocks and other ‘tough on crime’ advocates when the culpability is not with children but with adults in positions of power?
Marie McInerney writes:
A Queensland magistrate has said that a 15-year-old Indigenous boy with a significant intellectual disability would likely not be offending or imprisoned if he had received appropriate care from his guardian – the state of Queensland.
Magistrate Eoin Mac Giolla Rí told the Children’s Court in Beenleigh that the boy, who had been given the pseudonym Jack Campbell by the court, had had no stability in his placement since returning to the full-time care of the State at the age of 10.
The frequent offending by the boy, who had a history of being abused and victimised, may be his way of getting back into detention for its predictability, structure and routine, Mac Giolla Rí said.
Without proper supports such as secure placements, positive relationships, good medical care and therapy, the boy “will continue on a sad merry-go-round of offending, incarceration and hopelessness,” the Magistrate said last month in sentencing remarks that were published online this week.
Mac Giolla Rí said he was required by his role to impose a sentence on the boy that was just and that protected the community from the risk he will offend again.
“Ultimately … it seems to me that the justice system can have only a limited impact on Jack’s offending unless those with responsibility for caring for Jack dramatically improve his care,” the Magistrate said.
“It is likely that Jack’s imprisonment and offending against the community would not be occurring if Jack was receiving appropriate care from his guardian, the State of Queensland,” he said.
Address root causes
Catherine Liddle, CEO of SNAICC, National Voice for our Children, described Jack’s story as “devastating”.
“I feel for this boy who has been failed time and time again by the child protection, and now by youth justice systems,” she told Croakey.
“This case really does highlight what we know about young people who continuously reoffend – they are the children who need our help the most and require supportive intervention much earlier than their first offence,” Liddle said.
The case comes as states and territories are once again ratcheting up ‘tough on crime’ approaches particularly for young people, including the new Northern Territory Government which has pledged to lower the age of criminal responsibility to 10, restrict bail for children, and re-introduce spithoods in detention – measures condemned by the Royal Commission into Don Dale youth justice abuses.
Jack’s case also raises important questions of culpability that are not confined to Queensland or the NT – where states and their child protection systems have a duty of care to those who are placed with them, as a 2015 Victorian inquiry into children and young people who were sexually abused or exploited in ‘resi’ care found.
The state’s duty is to care for those in its care “as a good parent would”, it said, but the present model of residential care “does not seem to provide for their physical, intellectual, cultural, emotional and spiritual development and creates an environment where children are at risk of and not protected from sexual abuse”.
Liddle said there will be more cases like Jack’s if governments don’t invest in early intervention services for families, transfer of services to Aboriginal Community Controlled Organisations (ACCOs) and structural reform that addresses the exorbitant rate of child removal among Aboriginal and Torres Strait Islander families.
“We have seen experts calling for a shift away from punitive measures and towards strategies that address the root causes of youth involvement in the criminal justice system, it’s time that our governments listened and acted on the wealth of advice which shows this approach is harming our young people,” she said.
No deterrent
In his sentencing remarks, Mac Giolla Rí outlined Jack’s history in care: removed from his mother by child protection when he was two days old because of concerns about neglect, family violence and substance abuse, and placed with foster carers when he was two months old until they relinquished him at the age of 10, which led him into residential care.
He had been diagnosed with foetal alcohol spectrum disorder (FASD), autism spectrum disorder, intellectual disability, anxiety, depression and dysregulated mood disorder.
The Magistrate said that Jack only rarely has the level of care that he requires, “though when he does, he presents as a dramatically lower risk of reoffending,”.
This statement was referring to the period from January to March 2024 when Jack was in a specialised care facility with a carer to child ratio of 2:1 at all times, something he had not had available before or since.
“It seems that whether or not Jack reoffends depends largely on the care he receives in the community and not on any sentences imposed on him,” he said.
The Magistrate said that, over his short life, Jack had been responsible and punished for many offences, and imprisoned many times, including for two-thirds of this year.
“On most occasions Jack reoffends almost immediately upon release,” the court heard.
That included the latest case, where Jack had pleaded guilty to three charges, including breaking into an unoccupied house, with another child, and stealing a handgun and four ammunition magazines (with no bullets) from a gun safe.
The following day, Jack handed one of the stolen magazines to a worker at his Child Safety residential placement and helped with retrieval of the other.
Mac Giolla Ri found Jack’s surrender of the property was unusual: not only a substantial feature in mitigation, “but it also raises the important question of whether prison/detention has any deterrent value where Jack is concerned’, he said, citing evidence that Jack struggles greatly unless he is surrounded by predictability, structure and routine and had admitted to offending in order to go back to detention.
Turning to issues of concern about care provided, Mac Giolla Ri said it was hard to discern, given Jack’s intellectual disability must have been present at birth, why it took three years after returning to the full-time care of the state for a National Disability Insurance Scheme (NDIS) package to be put in place.
Jack’s medication had recently been reviewed and he was taken off an anti-convulsant medication, sodium valproate, “because it can cause aggression, hyperactivity and behavioural disturbance”.
His therapist had told the court that Jack’s poor communication skills and intellectual impairment “limit his ability to understand what behaviour is in his interests and what is not”, and his capacity “to distinguish between good people and bad people”.
“Rather than being driven by greed or addiction, Jack’s offending is driven, at least in large part, by his desire to make social connections with the only peers realistically available to him, other young offenders,” the therapist said.
“Jack is at risk of institutionalisation, that is, developing a personality that will never be able to successfully live outside a detention/institutional setting,” he said.
Beyond the court
On the day of Jack’s appearance at Beenleigh in August, Child Safety advised the court that the specialist 2:1 placement that had benefited him earlier this year was not available and that no specific placement had been planned at all for Jack were he to be released that day.
The magistrate questioned whether the residential placement system as it currently exists in Queensland “is a viable way to care appropriately for vulnerable children”, saying information given to the court suggested that the ‘resi’ system “rarely, if ever, creates anything like a placement that gives a sense of security to a child”.
He said that’s because:
- placements are contracted out to various organisations and are ‘opened’ and ‘closed’ on an ad hoc basis
- staff are rotated between homes and across various shifts
- a child’s placement will usually be ‘closed’ if the child is absent for more than a few days, for example goes to detention or stays with friends or family
- even if a child does remain in his or her placement, long stays in a particular placement are usually measured in weeks and months and not years.
“As a result of the systems features, there is limited opportunity for a child/staff member to form a trusting relationship,” the Magistrate said. “If positive relationships form, it is likely to be despite rather than because of the system’s design.”
Eoin Mac Giolla said that, unfortunately, the interventions that can protect the community from offences Jack may commit in the future were largely “not things that I can impose by way of sentence”.
He was referring, he said, to interventions such as a placement that provides long-term predictability, structure and routine, positive relationships for long enough to help him work out whether particular people will make his life better or worse, and intensive and continuous access to therapists.
“It is quite clear that with appropriate support, Jack is quite capable of creating a tolerable future for himself but without that support he will continue on a sad merry-go-round of offending, incarceration and hopelessness,” Mac Giolla Ri said.
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