Young people in Queensland are pleading guilty to offences they did not commit – or where there is little evidence to support charges – to avoid spending extreme periods on remand in the state’s buckling youth justice system, lawyers say.
Queensland has the nation’s largest youth prison population, and recent data obtained by Guardian Australia reveals 88% of children in detention centres and police watch houses were being held unsentenced.
On 15 March, 337 young people were in custody in Queensland – more than double the number in Victoria.
Lawyers and youth advocates say the state’s bail policies – which have resulted in increasingly large numbers of children being held on remand while court matters drag on – have effectively imposed extrajudicial punishments on young people who may ultimately be exonerated, or not sentenced to prison time.
Children’s court data suggests that typically one in three children accused of offences will either be found not guilty, or have their matters discontinued.
Guardian Australia’s Written Off investigation has documented overcrowding and understaffing in Queensland’s youth detention system, which advocates say is further criminalising children who can spend weeks at a time in solitary confinement.
In 2019, Queensland introduced a presumption against bail into the Youth Justice Act, which demands that police or courts “must” keep a child in custody if “there is an unacceptable risk that the child will commit an offence that endangers the safety of the community or … a person” and that risk cannot be mitigated.
Katherine Hayes, a lawyer and the chief executive of the Youth Advocacy Centre, which represents children in the court system, says the threshold for a young person to obtain bail is extremely high, which means many spend a disproportionate time in prison prior to being sentenced.
“This has led to a situation where young people are pleading guilty to the charges to get out of detention, because the time spent on remand is often longer than the sentence they would have received,” Hayes said.
The state government’s own review into its youth justice laws noted that similar claims had been made by other lawyers.
“They expressed concerns children may be pleading guilty to offences they either have not committed or where evidence is inadequate, to avoid the impact of the new bail laws or delays in resolving matters or having a trial listed.”
The children’s court heard recently that Jenny (not her real name), a 16-year-old from Cape York, spent 94 days in detention prior to her sentence, including most days in solitary confinement at the Cleveland youth detention centre.
When her case was brought to court, prosecutors did not seek a period in detention.
In another recent case, the court heard a boy, anonymised as Nathan, was held in custody for 32 days after telling the court he wanted to plead guilty to offences for which he would not have been sentenced to any time in detention.
“It is a cruel and unusual punishment to detain a child … in knowledge of the fact that he should, ultimately, in all likelihood, not be sentenced to detention for the offences for which he is being held in custody,” Judge Alexander Horneman-Wren said in a written judgment.
John Robertson, the former president of the children’s court and the current chair of the state’s Sentencing Advisory Council, said he had concerns about the increased incarceration of children.
“Our research over many, many decades has indicated that the earlier a child is subjected to any form of incarceration – whether it be on remand or as a sentenced prisoner – it is more likely to criminalise them than lead to deterrence or rehabilitation.
“Consequently the whole approach to juvenile justice … [should be] to try to keep children out of custody because otherwise you’re undermining the protection of the community rather than enhancing it.
“From my personal experience as a children’s court judge over 23 years … any law change that is likely to increase the incarceration of children is more likely to undermine community protection than enhance it.”
Delays in the court system contribute to the extreme periods that children can spend on remand.
The most recent annual report for the children’s court raised concern that a lack of mental health professionals, particularly in relation to more serious charges, was causing long delays in obtaining information required for sentencing.
The court president, Deborah Richards, said a dedicated child youth mental health service could only see children facing less-serious matters before a magistrate and was “chronically understaffed”.
“It leads to large delays in the resolution of charges and leaves children’s significant mental health issues untreated,” Richards said.
Earlier this year, Queensland again toughened its laws, overriding its Human Rights Act to criminalise breaches of bail conditions by children. In the two months since, police have charged 169 with the offence. Two-thirds of those charged were First Nations young people.
A spokesperson for the state government said Queensland was spending $14.8m on a fast-track sentencing program to ensure matters were finalised faster.
“This will ensure young people spend less time on remand and more time serving their sentences,” the spokesperson said.
Written Off seeks to detail the experiences of young people in Queensland’s justice system, where record numbers of children are being arrested and imprisoned. Know more? Contact ben.smee@theguardian.com
