Whether they are guilty of car theft, home invasion or shoplifting, every child who appears before Sue Duncombe at the New South Wales youth Koori court has their sentence deferred.
The child will be given an opportunity to show the court what happens when – often for the first time in their lives – they are given support, which can include rehabilitation, cultural engagement, education and healthcare.
Duncombe rejects any suggestion this approach is soft on crime.
“These are the children of people who themselves are traumatised,” the magistrate says.
“It is the kind of trauma that can be genetic. It is the kind of trauma that occurs as a result of disadvantage, of stolen generations, of racism and, perhaps, out of the use of drugs and alcohol to mask the trauma.
“It is the kind of trauma that is being passed on in utero, and it is the kind of trauma that sometimes leads to children being removed from their parents.”
These are not kids whose parents simply failed to discipline them or who have experienced common childhood hardships.
“If the community read some of the stuff that we have to read about these kids and what they have endured, in utero, as babies, and into childhood, they would be appalled, and maybe we wouldn’t get this attitude of ‘tough on crime’,” she says.
Some of the children are unprepared for the intensive program ordered by the Koori court, which sits in Surry Hills, Parramatta and Dubbo. The court has the same powers as the children’s court but uses a different process to better involve Aboriginal and Torres Strait Islander young people, and to take into account the risks this population faces due to intergenerational trauma, inequity and racism.
Unlike the children’s court, every case is deferred.
“Kids have to be ready to make changes,” Duncombe says. “But for those who are ready, why shouldn’t we provide them with an opportunity they’ve never had?”
Children are required to undertake a ‘“curriculum”, with support and input from Indigenous elders and community leaders. If the young person complies, their case may be dismissed or their sentence reduced.
If they don’t, they may be sentenced to custody or withdrawn from the Koori court system.
“We don’t kick a kid out lightly,” Duncombe says. “Some of them withdraw themselves and say it’s easier to just get sentenced and do time, because Koori court can be difficult and they have so many conditions to adhere to, and the process of engagement with the curriculum is exhausting.”
But, once a young person is incarcerated, chances increase that they will remain enmeshed in the criminal justice system, at great cost to the community.
An evaluation of the youth Koori court process, published in 2022, found expanding the court to one additional site would result in a benefit-cost ratio of 2:1, with an estimated direct economic impact to the NSW economy of $2.1m.
The evaluation found that 60% of the children who go through the court graduate from the curriculum. For Duncombe, some of the most memorable graduations are teen mothers who keep their babies, their adherence to the program preventing another generation of children going into care.
“On last count, we’ve stopped the removal of 20 babies born to youth Koori court participants,” she says.
Waiting list for diagnosis
A separate, groundbreaking paper published in 2018 by the Telethon Kids Institute recommended that as soon as young people engage with the justice system, they should be fully assessed for cognitive disability in recognition that any brain impairment may impact their culpability.
Nearly all of the 99 young people aged between 10 and 17 assessed in one detention centre as part of the study had severe brain impairment, with 36% diagnosed with foetal alcohol spectrum disorder. Of those with FASD, 96% identified as Aboriginal.
The condition, caused by alcohol exposure during in utero, results in permanent brain damage. These children are also more likely to be coerced into poor behaviour.
The study highlighted the urgent need for cognitive disability assessments in youth justice. Research has shown that “the suggestibility of a person with FASD means they are more likely to gratuitously concur with propositions put to them by police in interviews”, risking their entrenchment in the criminal justice system.
But assessing conditions like FASD requires significant skill and resources.
“There’s a waiting list for formal FASD diagnoses, and there’s limited people who can do them,” Duncombe says. “Until recently, children before the youth Koori court didn’t have any priority for this assessment.”
A partnership is now under way with Westmead children’s hospital’s Cicada FASD service to fast-track assessments for those before the court. A diagnosis of a cognitive impairment can lead to mental health supports being offered and may reduce the young person’s culpability, affecting bail or sentencing decisions.
There are a range of organisations that conduct cognitive assessments of children and teenagers once they enter the justice system. This process differs by state and territory.
Patches Australia is a private service that provides assessments in remote communities, including for children and youth in the justice system in Western Australia and the Northern Territory.
A paediatrician and the Patches chief executive and founder, Dr James Fitzpatrick, says it can take up to 40 hours to properly assess a child for cognitive disability.
This is because these children are more likely to have moved families or foster carers many times, may have limited or no medical records, and may have conditions that are challenging to diagnose.
A Patches assessment team comprises at least one paediatrician and one psychologist who gather information from foster and kinship carers, parents, schools, hospitals and child protection.
The paediatrician will spend at least 90 minutes with the young person; the psychologist closer to four hours. A physical examination is conducted.
“We’ll then spend time report writing, case conferencing and following up information gaps,” Fitzpatrick says. “We might also interview family members. A condition like FASD can take up to 40 clinical hours to assess and diagnose.”
The team’s findings are written up into a report that is put before the magistrate.
Many children in detention have some form of cognitive impairment or mental illness, and not all of them will receive the diagnosis and support they need to avoid incarceration, or to have their condition considered by the court.
It is why Duncombe believes every young person should have their sentence deferred and given a chance to engage with a curriculum of education, support, healthcare and rehabilitation, whether they appear before the youth Koori court or the children’s court.
“We can both support youth and outline appropriate punishment for them – it’s not an either-or situation,” she says. “I hope one day we will see all of these cases deferred.”
But amid resistance to calls to raise the age of criminal responsibility, and calls from some politicians to lock up youth offenders, she says: “That probably won’t happen in my lifetime.”