NSW prosecuted 11-year-old, put hundreds of children behind bars

An 11-year-old child has been punished for something that even senior officials admit is “not very serious”.

NSW authorities prosecuted an 11-year-old child for theft last year, and put hundreds of other young children behind bars.

Three 10-year-olds were charged with crimes, although no charges were proven, justice officials told a budget estimates hearing.

There were 293 children aged between 11 and 13 who spent time behind bars, the majority of whom were Aboriginal or Torres Strait Islander.

Fifty-four per cent of those children were Indigenous, despite First Nations people only making up less than 4 per cent of the state’s population.

NSW Attorney-General Mark Speakman told the hearing he and his counterparts in other states were working together to find out what would happen if the age of criminal responsibility was raised to 12.

“There is no decision in principle by the government to raise the age or not to raise the age, we’re looking at what a model will look like … and will then make a decision,” he said in response to questioning by Greens MP David Shoebridge.

NSW Attorney-General Mark Speakman said the government had not made a decision to raise the age of criminal responsibility. Picture: NCA NewsWire / Christian Gilles

However, not all Attorneys-General agreed the age should be 12, with Queensland arguing for keeping the limit at 10 and the ACT aiming for 14.

“It may be that you can’t get unanimity between the states and territories,” Mr Speakman said.

Mr Speakman speculated “some police” might argue young children need to be brought before the justice system in order for courts to be able to order the kids to go through support programs.

“Some police will say that in extreme circumstances we have to expose some kids to the criminal justice system not because we want to have a criminal record for them, not because you want them incarcerated, but as a way to get a court-ordered diversion,” he said.

“You could say, ‘Why are we bothering to prosecute 10 or 11-year-olds where you get one charge of theft, which is potentially not a very serious charge.’

Department of Communities and Justice deputy secretary Paul McKnight gave an update on child detention statistics. Picture: NCA NewsWire / Christian Gilles

“But on the other hand, others will say it’s a way to basically bring kids to diversion that they otherwise might avoid.”

The hearing was told in the 12 months to September 2021, three 10-year-olds had finalised criminal court appearances.

For 11-year-olds that number was 15, for 12-year-olds 56, and for 13-year-olds 207.

A finalised court appearance can mean a plea deal was arranged, a diversion ordered or charges dropped.

In none of those cases were charges proven, Department of Communities and Justice deputy secretary Paul McKnight said.

Australia has been criticised internationally for detaining children. Picture: NCA Newswire /Gaye Gerard

“If the charge wasn't proven, the court would have finalised it in some other way,” he said.

Mr McKnight also said in the 12 months to June 2021, nine 11-year-olds were admitted to detention centres.

In the same period, 72 12-year-olds and 212 13-year-olds were put behind bars.

Eleven-year-olds spent an average of 3.8 days on remand, 12-year-olds 3.1 days, and 13-year-olds 7.1 days.

Mr Speakman said there were typically only “four or five nights a year” during which a 10 or 11-year-old was in a NSW detention centre.

“The numbers who are detained are extremely low and generally they are there on remand rather than having been sentenced,” he said.

Australia last year copped criticism by a group of 31 United Nations member states who say the country’s age of criminal responsibility should be no lower than 14.

“These new numbers show why it is essential to raise the age,” Mr Shoebridge said in a statement after the hearing.

“So many of these kids are First Nations kids and criminalising 10 and 11-year-olds is directly harming some of our most vulnerable communities.”