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Introduction

After being arrested by police in relation to a suspected criminal offence, a young person can be held on custodial remand (ie refused bail) before entering a plea, while awaiting trial, during trial or awaiting sentence.

In recent years, concern about the number of young people being held on custodial remand has emerged. This concern emerged partly in response to research by the Australian Institute of Criminology (AIC; Richards & Lyneham 2010), which found that nationally, the proportion of young people in detention who are on remand (ie unsentenced) has been steadily increasing since 1981. As Figure 1 shows, while approximately 20 percent of all young people in detention in 1981 were on custodial remand, this had increased to approximately 60 percent by 2008 (see further Richards 2011a).

Figure 1 Proportion of all young people in detention who are on custodial remand, 1981–2008 (%)

Source: Richards & Lyneham 2010

Impacts of custodial remand

Custodial remand has been identified ‘as one of the most taxing and unstable prison experiences’ (Freeman & Seymour 2010: 138) and a wide range of negative outcomes have been shown to impact young people who are remanded in custody prior to being tried or sentenced for an offence. Goldson and Jamieson (2002: 69) describe custodial remand as ‘ineffective (at best) and iatrogenic (at worst)’ (see generally NSW LRC 2012).

Impacts of custodial remand on young people

Adverse effects for young people include:

  • Separation from family and community. Youth detention centres are often far from young people’s homes, limiting family and friends’ capacity to regularly visit young remandees (NSW LRC 2012). Moreover, custodial remand involves removing the young person from their usual social support structures at a time of vulnerability, thereby increasing the risk of potential physical and psychological harm to the young person (Mazerolle & Sanderson 2008). For example, young people in remote areas of Western Australia face ‘severe and potentially traumatic’ impacts if they are remanded in custody, as they are often ‘transported great distances to be held in adult facilities or placed in the Perth remand centre’ (Clare et al. 2011: 31; see also Bailey 2009; Brignell 2002);
  • Disruption to education and employment (Bailey 2009; NSW LRC 2012). Young people who are engaged in schooling and/or employment have these disrupted when placed on custodial remand. This is concerning given the strong protective role that engagement with school and employment can play in reducing young people’s offending;
  • Association with sentenced young offenders (Bailey 2009). This may have a criminogenic effect and result in young people creating delinquent peer groups, which in turn may result in offending in the future (Brignell 2002; Ericson & Vinson 2011). Gatti, Tremblay and Vitaro’s (2009) longitudinal study of male young offenders in Montreal, Canada, demonstrates the criminogenic influence of youth justice interventions on criminal behaviour. This study compared the occurrences of further criminal activity into adulthood with the participation of young males in various levels of youth justice interventions. It was concluded that although contact with any intervention increased the likelihood of further criminal activity into adulthood, the negative impacts increased with the level of severity of the intervention. This issue is particularly concerning in very small jurisdictions in Australia, as sentenced and remanded young people are not always separated in detention due to the very small number of young people detained;
  • Being inappropriately held in police lockups or facilities that are not designed to meet the needs of young people (Auditor General For Western Australia 2008; NT Government 2011; Stubbs 2010); this is particularly the case for young people who live in regional, rural or remote areas (Auditor General For Western Australia 2008);
  • Not being able to access therapeutic programs. As the Queensland Commission for Children and Young People and Child Guardian’s (2011) research found, therapeutic programs, which address young people’s criminogenic needs and are an important corollary to educational and recreational programs, are usually only accessible to sentenced young people. Criminogenic needs are broadly recognised as risk factors for offending that are ‘dynamic or amendable to change through intervention’ (Day, Howells & Rickwood 2004: 2). Examples for young people include ‘…drug and alcohol use, anger and violence problems, and beliefs or attitudes that support offending’ (Day, Howells & Rickwood 2004: 2). As Mazerolle and Sanderson (2008: 10) argue (see also NT Government 2011):
    it is difficult to plan and provide appropriate programs for these [remanded] individuals, as detention centre staff do not know how long they will be detained or what the outcome of their charge will be;
  • Being more likely to receive a remand period following a future court appearance. Mazerolle and Sanderson’s (2008) Queensland study showed that past remand experiences strongly influenced the chance of receiving remand for subsequent court appearances. This is unsurprising as prior remand episodes are included in Queensland’s bail legislation as an important consideration for evaluating the risk of reoffending; and
  • Being more likely to be given a sentence of incarceration than young people who received bail. As Kellough and Wortley (2002: 187) claim (see also Allan et al. 2005):
    even when type of charge and prior criminal record are controlled for, research shows that offenders who are remanded in custody before trial are more likely to be sentenced to a period of incarceration than their bailed counterparts.

This is particularly concerning given that research has shown that very poor people and people from ethnic minority groups are more likely to be remanded in custody than others (Ericson & Vinson 2011; Kellough & Wortley 2002). Kellough and Wortley (2002) argue that remandees may feel pressured to plead guilty for a variety of reasons (eg not wanting to serve ‘dead time’ or believing they will receive a discount for time already served) and that this may explain higher rates of incarceration among remandees. It could also be a result of the limited ability to prepare for court appearances that being remanded in custody places on young people (Bailey 2009). In addition

those on remand have fewer resources to prepare their defence, they may make a less favourable impression when they appear in court (they will probably be less well dressed and have experienced a loss of morale). They also miss the opportunity to impress the court by showing that they have met their bail conditions and appeared in court (Brignell 2002: np; see also NSW Law Reform Commission 2012).

Freeman and Seymour’s (2010) interviews with young people (aged 16 to 21 years) on custodial remand in Ireland (n=62) found that most identified the sense of uncertainty that characterises remand as the worst aspect of their remand experience. Uncertainty took a variety of forms for the young people interviewed, who identified being concerned about:

  • their release date;
  • whether to become involved in prison activities such as work, education and leisure, and whether they were entitled to participate in such activities;
  • relationships and personal safety (eg the young people felt establishing relationships with other inmates was futile given they or other inmates might be released with little notice and this impacted on feelings of safety and having support while on remand);
  • maintenance of familial relationships (families often don’t visit as they assume the young person will be released ‘soon’); and
  • outside life (eg maintaining jobs and housing while on remand; Freeman & Seymour 2010).

Freeman and Seymour (2010: 138) found that this sense of being ‘in limbo’ exacerbated existing vulnerabilities and difficulties the young people faced, and had negative psychological and social consequences, including

high levels of anxiety; withdrawal from social contact with others both within and outside the prison; a sense of having no control; feelings of apathy and hopelessness; disruption to social relationships; housing difficulties and unemployment.

Impacts of custodial remand on the community

A number of adverse consequences of placing young people on custodial remand on the community have also been identified in the literature.

Financial costs

Detention-based youth justice services cost governments more than community-based youth justice services (such as supervised bail). The Report on Government Services calculated the real expenditure per child aged 10–17 years in Australia for detention-based services as $170 compared with $92 for community-based services (SCRGSP 2013).

One element of the financial cost of detention is the costs associated with the use of remand (Allan et al. 2005). For example, Snowball (2011) estimated that in New South Wales, the annual cost of keeping young people on custodial remand was approximately $47.2m in 2008. These costs included keeping young people remanded and the costs associated education, health and other services provided. In 2008, there were nine NSW detention centres for young people, ranging from short-term accommodation with eight beds, to larger facilities holding up to 120 young people (DAGJ nd; NSW Department of Juvenile Justice 2008).

The Coalition Against Inappropriate Remand (2008) estimated that it costs over $20m annually to keep young people (defined as 10 to 16 year olds in Queensland) on remand in Queensland. Queensland has two youth detention facilities for young people in custody, both with a capacity to hold over 100 young people (QCCYPCG 2012).

Importantly, if accused persons placed on remand are more likely to plead guilty to charges against them and to be incarcerated than their bailed counterparts (Kellough & Wortley 2002), costs may include not only the initial period of custodial remand, but subsequent periods of incarceration.

Community safety

Although a primary justification for remanding accused persons in custody rather than releasing them on bail is that doing so will increase community safety, it is important to consider whether this has been shown to be the case (Stubbs 2010).

Vignaendra et al.’s (2009) study on the remand of young people in New South Wales found no statistically significant relationship between rates of youth property crime and an increase in the use of custodial remand for young people. While this research suggests that remanding more young people will not translate into a reduction in property crime, it did not consider the relationship between custodial remand for young people and the prevalence of violence in the community, which is likely to be of more concern to the community than property crime.

Snowball’s (2011) research, which also focuses on New South Wales, found that while police rarely erroneously remand in custody young people who pose a low risk of offending, they do grant bail to a small proportion of high-risk young people. While this study appears to support the notion that the increased use of custodial remand (or at least the better targeting of custodial remand) will result in a decrease in crime, it is important to note that it considered only risk, not potential harm. That is, while those young people remanded in custody might pose a high risk of offending while on bail, it is not known whether the harm from this predicted offending is sufficiently serious to justify detaining the young person. In addition, although young people remanded in New South Wales may be at high risk of offending, research demonstrates that only a small proportion of young people remanded in custody are subsequently sentenced to a period of detention (see eg AIHW 2012a; Noetic Solutions 2010; NSW LRC 2012). It seems somewhat incongruous to claim that police only remand high-risk young people if it is the case that those young people do not subsequently serve a term of sentenced detention (although as discussed in more detail later in this report, it may be that in some instances, a process of ‘backdating’ occurs, whereby time spent by young people on remand is taken into account at sentencing (see NSW LRC 2012 for a discussion).

Research in Victoria (JSSEC 2013) shows that of all young people for whom a custodial remand order was the first youth justice order made during 2010 (n=302, not including 43 cases for which an offence was not recorded), over a quarter were placed on remand for non-violent offences such as crimes against property (27%, n=94), driver licence offences (n=1) and disorderly conduct (n=1). While no indication of the criminal history of these young people is given, these figures suggest that it is not always the case that only high-risk young people are placed on custodial remand (or rather that young people are sometimes placed on custodial remand for offences that are not very harmful to the community).

The issue of custodial remand for young people has therefore been the subject of consideration for a number of reviews and inquiries in recent years (NSW LRC 2012; HRSCATSIA 2011; NT Government 2011; Noetic Solutions 2011, 2010).

Research aims

Broadly speaking, the primary purposes of the current research were:

  • to identify trends in the use of custodial remand for young people nationally and in each of Australia’s jurisdictions;
  • to explore the factors that influence the use of custodial remand for young people nationally and in each of Australia’s jurisdictions;
  • to document differences among the jurisdictions as to the legislation, policy and practices that underpin the use of custodial remand for young people; and
  • based on the above, and where appropriate, to make recommendations about limiting the inappropriate use of custodial remand for young people.

What is meant by the term youth or young person?

For the purposes of this report, a youth or young person is defined, in line with each jurisdiction’s legislation, as a person aged 10 to 16 years (inclusive) in Queensland and 10 to 17 years (inclusive) in all other jurisdictions.

What is the meaning of bail and remand?

When police arrest and charge a suspect with one or more criminal offences, the suspect can either be granted bail or remanded in custody. The granting of bail enables the suspect to be released on the condition that he or she agrees to appear in court at a later date (Roth 2010). Bail can be conditional or unconditional, supervised or unsupervised.

Conditional bail refers to a bail undertaking under which the suspect agrees to adhere to certain conditions until the court hearing (eg to report regularly to police, or adhere to a curfew). Unconditional bail refers to a bail undertaking under which the suspect agrees to appear in court at a later date but does not have to adhere to any conditions prior to the court hearing.

Supervised bail refers to periods of bail that are undertaken under the supervision of a criminal justice agency (ie for young people, under the supervision of the relevant statutory youth justice agency). Unsupervised periods of bail are undertaken without an agency playing a supervisory role.

Accused persons who are refused bail are remanded in custody to await their court hearing at a later date. The decision to grant bail or refuse bail and remand a suspect in custody can occur at a number of points in the criminal justice process:

  • when a suspect is arrested by police (as described above);
  • at the accused person’s first court hearing (by a Magistrate or Judge); and
  • at subsequent court hearings (by a Magistrate or Judge).

Therefore, a person remanded in custody may be waiting for an initial court hearing, a subsequent court hearing (including a sentencing hearing), or the outcome of an appeal. It should also be noted that in New South Wales, Western Australia, the Northern Territory and the Australian Capital Territory, Judges and Magistrates can, depending on the seriousness of the criminal charge, dispense with the need for deciding on bail and release the accused unconditionally.

It is important to note, as Roth (2010) has, that bail/remand decisions are only relevant following an arrest by police. There are, however, other ways that police can apprehend suspects, including via a summons, or in the case of young people, via a diversionary measure such as a caution or youth justice conference (see generally Richards 2009).

Outline of this report

This report is divided into five main parts. The first provides an overview of quantitative data on young people on custodial remand in Australia, by Indigenous status, sex and jurisdiction.

The second outlines the current legislation that governs bail decisions for young people in each jurisdiction and describes who can grant bail to young people, when young people can apply for bail, the factors that bail decision makers must consider and the conditions that can be placed on young people granted bail.

The third section outlines the roles of the key figures in bail processes for young people, including police, youth justice staff, prosecution and defence lawyers, the courts and bail service providers.

The fourth section considers in detail the wide range of factors that influence rates of young people on custodial remand, based on the existing literature and qualitative interviews undertaken for this study.

Finally, section five provides information on current bail support services and programs for young people in each of Australia’s jurisdictions.