'Do we have that much to fear from a 12-year-old Aboriginal kid that we need to cage them?'

Laura Murphy-Oates
·6 min read

Daniel Daylight will never forget the day a young Indigenous boy asked for bail in the children’s court so he could attend his year 6 farewell.

The 33-year-old Gamilaroi man was working as the Aboriginal client and community support officer at Parramatta children’s court in Sydney’s west. His main role was to refer kids to support services but he did whatever he felt was needed: talked to parents and lawyers, and bought kids lunch when they turned up hungry with no money.

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Daylight soon noticed a pattern. The same kids kept returning to the court, from the age of 10 to 18.

“You don’t see them after 18 because they graduate,” he says. “They’ve gone into big boys’ jail.”

But why was it the same kids, with the same needs? Why were some still homeless, year after year? After a decade working in the system, he reached a conclusion. The system isn’t working. The system is broken.

“The system as a whole still looks at Aboriginal people and wants to control us,” he says.

Daylight believes that if some of the funds governments spend on detention were funnelled into Aboriginal-owned and -run programs, the outcomes would be different.

He now works for a not-for-profit organisation called Weave Youth & Community Services. It can be hard to tell which “system” he is referring to – youth detention, the out-of-home care system, or the courts. To him they’re the same interconnected series of traps young people need to survive.

“I had more cousins in jail than other people had cousins,” he says. “What I like to do is try and extricate ourselves from those systems, try and help our people get self-determination where they don’t have to report to parole, they’re not being told where to live.”

At the children’s court Daylight saw kids with complex needs, while the available services were siloed. As kids bounced from service to service, their underlying problems were rarely addressed. Some were known as “crossover kids”, going from out-of-home care into to the criminal justice system and back again. Once a child came to court for breaching an apprehended violence order for putting honey in a washing machine. The boy was charged with malicious damage. Daylight regularly saw 10- and 11-year-olds charged with minor offences. One kid was brought to court for stealing a chocolate bar. Police decided a caution wasn’t enough because “he had an attitude”, he says.

“Maybe he has an attitude because he’s had a hard life?” Daylight says. “If you are a 10-year-old coming before the children’s court and coming quite often, it is because you have no support. You’re in an out-of-home care placement and you’ve got a lot of issues … We’re criminalising them.”

One day Daylight got an email from Sue Duncombe, a magistrate at the New South Wales children’s court. Duncombe wanted to explore alternative sentencing options for young Aboriginal offenders.

“I just said whatever it is, I’ll do it,” Daylight says.

“I was watching 14-year-olds going to adult custody, 10-year-olds languishing in juvenile custody and we were all sitting there getting paid. We were not doing anything to change the trajectory for these young people. We needed to try something different.”

In February 2015, on the back of the goodwill of people in the system and the community, the youth Koori court began. At its opening, Duncombe spoke of the need to work “with and alongside” Aboriginal people.

The court is for Aboriginal kids aged 10 to 17 who have entered a guilty plea. The magistrate, elders and support workers sit in a circle and discuss any problems the young person is facing – such as homelessness, drug use, anger management issues – and assess his or her physical, emotional and spiritual health. Then they make a plan.

Meetings take place every four weeks for up to 12 months. Each plan is tailored to suit the changing needs of the child and, at the end, the subject’s performance is taken into account during the sentencing process. Time spent on a Koori court plan can count as “time served”.

In 2018 University of Western Sydney researchers found that young people engaged with the court were less likely to end up in detention, with average days spent in detention falling by more than 50%. A second youth Koori court was established in inner Sydney in early 2019.

But Daylight doesn’t measure success in numbers. Though he left the Koori court in 2018 his life is still intertwined with those he met there. One young man who had spent most of his childhood in custody from the age of 12 was able to get a job and housing, and is now accessing support services at Weave. Daylight regularly sees one of the first participants of the Koori court, then a 15-year-old whose brothers were all in custody. She’s now in her early 20s and hasn’t spent a day in custody in the past five years.

But Daylight says waiting for kids to come to court and plead guilty is starting way too late.

“I want to stop people from ever going to court. I want to stop us focusing on having culturally safe courts, when really we need to have culturally safe communities and cities – where we don’t assume that an Aboriginal person walking down the street has a criminal record.”

At Weave, he helps 18- to 30-year-olds leaving prison resettle into the community.

According to the NSW Bureau of Crime Statistics, almost 60% of people in this age group are back behind bars within a year. In this program it’s less than 5%. But Daylight says repeated attempts to secure government funding have been rejected. He sees the lack of funding for community-based solutions and Aboriginal community-controlled organisations as a big part of the problem.

In 2019 NSW spent $17.7bn on the “stronger communities cluster”: services including the police, courts, corrective services, child protection and emergency services. One of its key aims was “breaking the cycle of reoffending” but Daylight says the money rarely goes to Aboriginal organisations.

“The whole issue comes down to self-determination and community control,” he says. “Our people know what the answers are.”

A key to success is flexibility. Government-run programs have strict criteria, meaning kids who may need the most support can be ineligible.

“We need to help people who need help. The biggest problem with the whole system is there’s no caring.”

For Daylight, one of the most important ways to stop Indigenous kids from entering into a troubled system is raising the age of criminal responsibility from 10 to 14.

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“Do we really have that much to fear from a 12-year-old Aboriginal kid that we need to cage them away from their family and away from their community?”

“Or do we need to take a good hard look at ourselves and realise the 12-year-old did not get there by themselves. They were pushed on to that path by circumstances they had no control over.

“The fact that we still need to argue to not lock up a 13-year-old kid is ridiculous to me and it shows how far we have to go.”

  • The Childhood in custody series is supported by the Barlow foundation. Read more about how the Guardian funds some content here.