It is often said that it’s time to “come down tough on” juvenile offenders, that a stint in jail would teach these young hooligans a good lesson; that it would teach them respect; that they would learn all about consequences. But has it been considered just which lessons are taught to young offenders while in prison?
There are times when things arise from necessity. In the late 1990s, lawyer David Heilpern was defending a young person and put the argument forward that this young person should not be given a custodial sentence, due to the probability that this young man would be sexually assaulted while in prison.*** The judge requested that Heilpern provide actuarial evidence. No such study then existed for Australia.
As a consequence David wrote Fear or Favour, this being based on his Honours Thesis. David’s findings included that 1/4 of male prisoners aged 18 – 25 years had been sexually assaulted, half had been threatened with sexual assault, 2/3rds were fearful of sexual assault, younger prisoners were at greater risk; that most sexual assaults were perpetrated by other prisoners; and that the incidents went largely unreported. Approximately 66% of all prisoners are aged between 20 and 39 years.
These statistics are horrendous enough, but can you imagine if there was a particular demographic within Australia who are imprisoned at a rate 14 times higher than the white population, this demographic comprising less than 5% of the population (estimated). Now imagine that 59% of juveniles detained in Australia were from this same demographic, meaning that these same juveniles were 28 times more likely to be given a custodial sentence than white juveniles.
Late June last year a report was tabled to the House of Representatives: Doing Time – Time For Doing. As well as the above, this report includes that:
- Between 2000 and 2009, the incarceration rate for Indigenous Australians rose by 66%.
- Between 2000 and 2010, the actual number of Aboriginal men in prisons rose by 55%, and the number of women rose by 47%.
- 70% of remote Indigenous adults have hearing loss or problems, but that Australian Hearing, “which provides free treatment for children under the Hearing Services Program, doesn’t visit juvenile detention centres”.
So why are Indigenous young people imprisoned at 28 times the rate as white kids? Creative Spirits provides the following:
Police remain hard-hearted and indifferent to prison rates and, in some cases, to Aboriginal prisoners themselves. The Children’s Court is often being told imprisonment is the only option due to lack of accommodation.
“Incredibly trivial offences”
There is evidence to suggest that police treat Aboriginal people differently for trivial offences, for example some Aboriginal people end up in jail because they did not get the postal notifications of court dates after which bench warrants are issued and bail is unlikely. Another example is being caught with 1.5 litres of any alcohol including beer in a restricted area carries with it a 18 month jail term.
Peter Collins, Legal Director of Aboriginal Legal Services in Western Australia (ALSWA):
“Every day of the week we act for Aboriginal people who’ve been charged with disorderly conduct. “Their crime: To swear at the police. They use the F word, they use the C word. Often they’re drunk or affected by drugs or both, or they’ve got a mental illness or they’re homeless or whatever. But it seems to me the only people in this day and age who are offended by the use of the F word and the C word are police. And so these [Aboriginal] people are hauled before the courts for these incredibly trivial offences.”
Lack of understanding of white law
More than 90% of people in Arnhem Land, NT, could not answer basic legal questions. 95% of Yolngu people could not explain the 30 most commonly used English legal terms, such as ‘bail’, ‘commit’, ‘arrest’ or even ‘guilty’. Even 90% of community leaders, school teachers and council representatives had no understanding of these legal terms.
This might explain why in 2008 over 80% of the Northern Territory prison population was Aboriginal. Many of them might as well be innocent because they didn’t understand what ‘guilty’ meant.
Richard Trudgen, CEO of the Aboriginal Resource and Development Services:
“People thought that pleading guilty actually got them through the court quickly and they didn’t go to jail. When they realised what the term guilty meant they were able to identify some of the things that they were convicted of that they never had anything to do with.”
Another reason why Aboriginal people make ‘false’ statements in court is that they are hearing-impaired through a cycle of poor health. There is a clear relationship between hearing loss and early Indigenous justice problems – 90% of Indigenous inmates in Darwin Correctional Centre suffer from hearing loss.
Priscilla Collins, North Australian Aboriginal Justice Agency (NAAJA): “Half the time our clients break the law because they don’t understand it”.
*** Note: this young offender was given a custodial sentence, was raped while in jail and killed himself upon his release.
The horrors experienced by many young inmates, particularly those who are convicted of non-violent offences, border on the unimaginable. Prison rape not only threatens the lives of those who fall prey to their aggressors, but it is potentially devastating to the human spirit. Shame, depression, and a shattering loss of self-esteem accompany the perpetual terror the victim thereafter must endure.
Heilpern, David M, “Sexual Assault of Prisoners: Reflections”  UNSWLawJI 17; (2005) 28(1) University of New South Wales Law Journal 286