A 13-year-old North Queensland boy with a serious disability spent more than 4½ months in youth detention in circumstances a judge has deemed to “have been cruel, inappropriate and have served no rehabilitative effect”.
Cairns Childrens Court Judge Tracy Fantin pulled no punches in her assessment of the treatment meted out to a boy, now 14, with “little criminal history” (identified as TA) while being held at Townsville’s Cleveland Youth Detention Centre (CYDC) for 139 days, including 78 in virtual solitary confinement.
The court was told TA was incarcerated after pleading guilty to his role in a robbery with personal violence with three other children at a shopping centre on 2 August 2022.
Judge Fantin, in describing the offending behaviour, said: “You (TA) were with three other children (who) approached a man who was employed as a trolley collector. The group was mocking him.
“Two of the group, it is not known who, used sticks to hit the man to his back. He tried to run away, but his legs were pulled, causing him to fall. As he fell, his mobile phone fell out of his pocket. One of the group picked it up. The group demanded he buy them cigarettes and give them $20 for the return of the phone.
“He said he needed his phone to withdraw money from the ATM. The group returned his phone to him. He walked inside the shopping centre. A plastic bottle was thrown at him as he did that. He approached a staff member and the group of you quickly left on foot.
“Because you were present in the group when that occurred (TA), you are also responsible for that attack on the man. It is not clear whether you actually did any of the things, in terms of hitting him or stealing or trying to take his phone. But because you were part of the group who were doing that and you did not walk away from it, you are also responsible for it under law.
“It was a terrible thing to do to that man. He was just trying to do his job to earn money, probably for his family, and it would have been frightening for him to have that happen to him. It was disgraceful, and very bad behaviour. Luckily, the man did not sustain any visible injuries.”
Despite the serious nature of the offending, Judge Fantin then turned on the treatment and accommodation afforded of TA while being held in youth detention.
The court was told TA had lived a “very difficult childhood so far” and had been living in government care since “just a baby”, struggling to cope with health issues such as foetal alcohol syndrome (developed in utero) and attention deficit hyperactivity disorder.
Judge Fantin, in an ex-tempore decision published on 27 February, said: “One of the most significant factors in sentencing you is the very long time you have been locked up.
“You have served a total of 139 days (over 4½ months) in juvenile detention, 122 days of which you were remanded expressly for this offence.
“To detain a 13 and 14-year-old child in a detention centre for such a long period of time is a significant punishment.
“To detain a young person who has your deficits and impairments, for the offence in question, for such a long period of time is, in my view, completely contrary to the regime of the Youth Justice Act and the Youth Justice principles.
“If that detention were demonstrated to have served some rehabilitative effect, that would be
something which would have ameliorated the harsh punishment which 139 days in detention constitutes, bearing in mind it is a period of over four months.
“But on the material before the Court, not only is there no evidence that that detention has had any rehabilitative effect, I am satisfied that the detention is likely to have caused you significant harm.”
Judge Fantin said harm was caused as a result of the circumstances in which TA was detained.
“For a start, at least five days of that period were spent detained in police watch houses in Cairns and Mareeba as a 13 or 14 year old,” she said.
“Second, and more significantly, there is a document before the Court which I ordered to be provided.
“An order was necessary because the Department of Children, Youth Justice and Multicultural Affairs declined to release the information I had requested to assist me on sentence without a court order.
“When one sees the information, its declining to do so is unsurprising, because that information contains the regime of detention which you have been subjected to.
“The information I requested was information relating to your ‘separation’ whilst remanded at (CYDC), including all occasions you had been detained in your cell over and above the 12 hours overnight, and for the number of hours on these occasions due to ‘separation’ or ‘continual cell occupancy’.
“Those expressions, ‘separation’ and ‘continual cell occupancy’, are euphemisms which have been developed or used by the (CYDC) to describe periods of time a child is locked in their cell, over and above the 12 hours they are locked down overnight for sleep.
“Separation information produced in response to the order was helpfully summarised by the parties in this way. It does not cover the entire period you have been in detention, it covers only a period that is the most recent three months, and only 87 days of it. So it is not a complete history.
“But of the 87 days that it does cover from 25 November 2022, what it shows, in summary is this.
“For 78 of those 87 days (that is, for the overwhelming majority of the time you have been at CYDC on the last occasion), you have been confined in your cell for 20 hours or more each day. For 10 of those 87 days, you have been confined in your cell for 24 hours per day.
“That is, you have effectively been held in solitary confinement.”
Judge Fantin said that, based on evidence, she was satisfied that TA suffered harm while detained at CYDC.
Read the full decision.