A Victorian supreme court judge has raised concerns an increased focus on crime may be causing authorities to take a “more conservative approach” when it comes to assessing bail suitability for children.
In a decision published earlier this month, supreme court judge Rita Incerti granted a 16-year-old Aboriginal boy bail after he had earlier been denied by a magistrate at Bendigo children’s court.
The boy, whose identity is suppressed and is referred to in the decision by the acronym PJ, was facing several charges including aggravated burglary, theft of a motor vehicle and committing an indictable offence while on bail.
Incerti found authorities had not proved PJ was an “unacceptable risk” to be denied bail and he presented with exceptional circumstances including “severe intellectual and cognitive disabilities”, an “extreme vulnerability to a custodial setting” and an “inherent vulnerability” as person who identifies as Aboriginal.
During a one-day hearing in late February, the court heard from PJ’s youth justice worker, who had assessed him as “unsuitable” for a supervised bail program.
She said this was due to concerns around his ability to engage with the program. But under questioning from PJ’s lawyer, she conceded youth justice had become “more strict in assessing suitability for bail”.
“We’ve been under significant review at the moment due to the increase and current focus on the youth crime, so there has been kind of a shift in direction around our assessments,” the youth justice worker said, according to court documents obtained by Guardian Australia.
The concession was noted by Incerti in her decision.
“It was also conceded by [worker] that, considering the increased discussions regarding youth crime in the public discourse, youth justice has come under scrutiny and has adopted a more conservative approach in their assessments regarding suitability for bail,” Incerti wrote.
“While I do not consider that this report was the product of an internal directive, it is a cause for concern if youth justice is considering public policy over the individual merits of a case.”
Her comments come as the Victoria government announced it has ditched its plans to give children the presumption of bail. It follows decisions in New South Wales and Queensland to tighten bail laws for children.
The Victorian attorney general, Jacyln Symes, last year committed to wind back bail laws to reduce the number of children remanded behind bars but delayed the change amid high-profile incidents of youth offending.
At the time, she stated she did not want to introduce the laws and spark a debate around a “a youth crime crisis that doesn’t exist”.
On Wednesday, Symes said she did not want to create “concern that we are weakening bail, when it’s not necessarily the case”.
She said “99%” of young people were already demonstrating they should be released on bail as they were able demonstrate to the courts exceptional circumstances or compelling reasons not to be put into custody.
But Negar Panahi, the principal managing lawyer of Balit Ngulu Practice at the Victorian Aboriginal Legal Service (Vals), which represented PJ, said Symes’ comments “couldn’t be further from the truth”.
“PJ is a very clear example resorting to remand as a preventative measure,” Panahi told Guardian Australia.
“Almost all [our] clients spend time on remand and they are not sentenced to periods of detention if they are found guilty.”
In her decision, Incerti said it was PJ’s first time in custody, he had no prior criminal convictions and was unlikely to receive a custodial sentence for his offending if found guilty of the charges outstanding against him.
She said it was “regrettable” authorities had been “seeking the ongoing remand of a vulnerable child” while his case passed through the courts, “with full awareness” he would not receive a custodial sentence.
Panahi also criticised Symes’ announcement of a trial of electronic monitoring of children on bail describing the move as a “fail” and “complete waste of money”.
She instead urged the government to invest in services to help divert children away from the criminal justice system, and added that funding for programs such as Balit Ngulu, Vals’ legal practice for Aboriginal children, was about to expire.
Victorian Legal Aid’s executive director of criminal law, Dan Nicholson, said the government’s decision to run a trial of electronic monitoring for young people released on bail and not proceed with reforms was “deeply disappointing, stigmatising, and not supported by evidence”.
“These changes will have a disproportionate impact on First Nations children and kids from communities of colour – and will further entrench the systemic racism they are already subjected to,” he said, while urging funding for programs like Balit Ngulu.
“These evidence-based initiatives are proven to work in reducing offending. They are the best solution to addressing the harms felt in the community because they identify and address the harms caused to children that are often the reason for their offending.”
