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Custodial remand of young people in Australia

In this section, an overview is provided of the data on young people on custodial remand in Australia. Data have primarily been taken from the AIHW’s (2012b) report Juvenile Detention Population in Australia 2011. Where possible, these data have been disaggregated by jurisdiction, sex and/or Indigenous status to provide a nuanced account of the custodial remand of young people in Australia. Data from the AIC’s Juveniles in Detention in Australia dataset, which contains data on young people in detention in Australia from 1981 to 2008, are also reported below to highlight longer term trends.

As indicated in Table 1, as at June 2011, 505 young people were held on custodial remand across Australia on an ‘average night’. The number of young people on custodial remand on an ‘average night’ is calculated by summing the number of nights of each period of custodial remand that a young person serves within a quarter and dividing the total by 91 (the number of nights in a standard year divided by the number of quarters in a year; see AIHW 2012b). Nearly half (48%) of all young people in detention at this time (total n=1,055) were therefore on remand rather than sentenced. Since 2007, approximately half of all young people in detention have been on custodial remand rather than sentenced (see Table 1).

Table 1 All young people in detention on an average night by jurisdiction and legal status, June Quarter 2007 to June Quarter 2011 (n)a
NSW Vic Qld WA SA Tas ACT NT Austa
June Quarter 2007
Unsentenced 181 31 109 78 24 19 10 33 483
Sentenced 160 113 50 72 27 10 4 20 456
Total 341 144 158 150 51 29 13 53 939
June Quarter 2008
Unsentenced 181 31 86 78 24 19 10 33 483
Sentenced 183 106 58 75 37 13 7 9 488
Total 430 155 144 163 68 34 15 31 1,040
June Quarter 2009
Unsentenced 204 44 75 76 26 21 7 18 469
Sentenced 219 100 43 79 32 14 4 15 505
Total 423 143 118 155 58 34 11 33 974
June Quarter 2010
Unsentenced 211 48 91 85 27 20 14 18 514
Sentenced 215 125 47 99 36 7 7 10 545
Total 426 173 138 183 63 27 21 28 1,059
June Quarter 2011
Unsentenced 194 43 95 98 38 13 9 14 505
Sentenced 187 151 45 102 23 12 12 18 549
Total 381 194 140 200 61 25 21 32 1,055

a: Numbers may not sum to totals due to rounding

Source: AIHW 2012b

Although nationally there has been little change in the proportion of detained young people who are on custodial remand recently (since 2007; see Table 2), there has been steady increase in the longer term. As Richards (2011a) shows, the proportion of young people in detention in Australia who are remanded, rather than sentenced, has increased substantially since 1981 (when the AIC began collecting data on young people in detention). At 30 June 1981, 21 percent of all detained young people were on remand, compared with 60 percent at 30 June 2008 (Richards 2011a; see Figure 1). Furthermore, Australian Bureau of Statistics (2008) data indicate that a far higher proportion of youth than adult detainees in Australia is remanded. At 30 June 2008, 23 percent of adult prisoners were on remand, compared with 60 percent of youth detainees. It should be noted, however, that an increase in the proportion of detainees who are on remand has occurred for both young people and adults (Richards 2011a).

Table 2 Proportion of young people in detention on an average night who are on remand by jurisdiction and Indigenous status, June Quarter 2007 to June Quarter 2011 (%)a
Indigenous status NSW Vic Qld WA SA Tas ACT NT Aust
June Quarter 2007
Indigenous 54.49 28.57 69.61 52.25 40.00 58.33 60.00 64.58 56.57
Non-Indigenous 50.94 20.49 64.91 51.28 53.85 76.47 75.00 np 45.60
Total 53.08 21.53 68.99 52.00 47.06 65.52 76.92 62.26 51.44
June Quarter 2008
Indigenous 52.09 28.00 65.85 52.46 45.16 62.50 57.14 67.86 54.08
Non-Indigenous 62.98 32.06 51.61 57.14 47.22 64.71 50.00 np 52.08
Total 57.44 31.61 59.72 53.99 45.59 61.76 60.00 70.97 53.08
June Quarter 2009
Indigenous 49.51 29.17 61.33 45.22 42.31 63.64 np 56.67 49.49
Non-Indigenous 46.92 30.51 69.05 58.97 46.88 58.33 71.43 np 46.95
Total 48.23 30.77 63.56 49.03 44.83 61.76 63.64 54.55 48.15
June Quarter 2010
Indigenous 46.19 23.08 67.06 44.88 41.18 75.00 60.00 68.00 49.43
Non-Indigenous 53.37 28.57 61.22 50.00 44.83 73.68 63.64 np 47.32
Total 49.53 27.75 65.94 46.45 42.86 74.07 66.67 64.29 48.54
June Quarter 2011
Indigenous 52.43 19.05 66.22 44.85 64.00 60.00 40.00 41.94 50.92
Non-Indigenous 49.73 23.26 69.23 57.81 60.00 50.00 45.45 np 45.41
Total 50.92 22.16 67.86 49.00 62.30 52.00 42.86 43.75 47.87

a: Proportions were not calculated when the denominator totalled less than 5 for the lack of statistical validity. Such proportions are recorded as np

Source: Adapted from AIHW 2012b

Sex of young people on custodial remand

As can be seen in Table 3, since June 2007, a consistently higher proportion of female than male youth detainees has been remanded in custody. Approximately half of all male young people in detention have been on remand during this time, compared with approximately two-thirds of female young people in detention. As Richards’ (2011a) work shows, this has also been the case in the longer term, with a higher proportion of female than male youth detainees having been remanded rather than sentenced since 1981. There has, however, been a greater increase in the proportion of male than female young people on remand during this time. At 30 June 1981, 33 percent of young females in detention were remanded. By 30 June 2008, this had nearly doubled to 65 percent. For young males, the proportion almost trebled during this same time period, from 20 percent at 30 June 1981, to 59 percent at 30 June 2008 (see Richards 2011a). It should be noted in interpreting these percentage increases that the base number of young women in detention is much smaller than the number of young men (see Table 3).

Table 3 All young people in detention on an average night by jurisdiction, legal status and sex, June Quarter 2007 to June Quarter 2011 (n)a
NSW Vic Qld WA SA Tas ACT NT Austb
June Quarter 2007
Male
Unsentenced 166 28 94 69 21 17 8 30 433
Sentenced 153 106 47 67 27 9 4 20 432
Total 319 133 141 136 48 27 12 50 866
Female
Unsentenced 13 3 15 9 3 2 2 2 49
Sentenced 7 7 3 5 - 1 0 0 24
Total 21 10 17 14 3 2 2 2 72
June Quarter 2008
Male
Unsentenced 221 43 77 78 26 19 7 19 489
Sentenced 176 102 54 69 35 12 6 9 462
Total 396 145 131 147 61 32 13 27 952
Female
Unsentenced 25 6 9 10 5 2 1 3 61
Sentenced 7 4 4 6 2 - 1 - 26
Total 32 10 13 17 7 2 2 3 87
June Quarter 2009
Male
Unsentenced 186 40 70 68 21 18 6 17 425
Sentenced 202 95 42 75 29 13 2 13 470
Total 388 134 112 142 50 31 8 30 895
Female
Unsentenced 18 4 6 8 5 2 1 1 45
Sentenced 14 5 1 4 2 1 2 2 31
Total 32 9 6 12 7 3 3 3 75
June Quarter 2010
Male
Unsentenced 192 45 84 77 24 19 10 17 467
Sentenced 204 118 45 94 35 7 6 9 518
Total 396 163 129 171 58 26 16 26 985
Female
Unsentenced 19 4 7 8 3 1 4 1 47
Sentenced 10 6 3 5 1 0 1 - 26
Total 29 10 10 13 5 1 5 2 73
June Quarter 2011
Male
Unsentenced 181 38 85 86 33 13 7 12 455
Sentenced 178 147 42 97 22 12 12 15 525
Total 360 185 127 183 55 25 18 27 979
Female
Unsentenced 13 6 10 12 5 - 2 2 51
Sentenced 9 3 3 5 1 - - 3 25
Total 22 9 13 17 6 - 3 5 75

a: Numbers may not sum to totals due to rounding

b: Totals include those with unknown sex

Source: AIHW 2012b

Indigenous status of young people on custodial remand

Since 2007, the proportion of young people in detention who are remanded rather than sentenced has been similar for Indigenous and non-Indigenous young people (see Tables 2 and 4). For Indigenous young people, the proportion ranged from 49 percent to 57 percent over this period; for non-Indigenous young people, the proportion ranged from 46 percent to 53 percent (see Table 2). No trend was apparent for either Indigenous or non-Indigenous young people during this period.

Richards (2011a) found that similar increases in the proportion of youth detainees who are remanded have occurred for both Indigenous and non-Indigenous young people in the longer term (since 1981). There was also little difference between the proportion of Indigenous and non-Indigenous female young people in detention who were on remand between June 2007 and June 2011. Similarly, there was little difference between the proportion of Indigenous and non-Indigenous male young people in detention who were on remand during this period.

Table 4 All young people in detention on an average night by jurisdiction, legal status and Indigenous status, June 2007 to June 2011 (n)a
NSW Vic Qld WA SA Tas ACT NT Austb
June Quarter 2007
Indigenous
Unsentenced 97 6 71 58 10 7 3 31 284
Sentenced 80 15 31 53 15 5 2 17 219
Total 178 21 102 111 25 12 5 48 502
Non-Indigenous
Unsentenced 81 25 37 20 14 13 6 2 197
Sentenced 77 98 19 19 12 5 2 3 235
Total 159 122 57 39 26 17 8 4 432
June Quarter 2008
Indigenous
Unsentenced 112 7 54 64 14 10 4 19 285
Sentenced 103 18 28 57 17 7 3 9 242
Total 215 25 82 122 31 16 7 28 527
Non-Indigenous
Unsentenced 131 42 32 24 17 11 4 2 263
Sentenced 77 89 30 18 19 6 4 - 242
Total 208 131 62 42 36 17 8 2 505
June Quarter 2009
Indigenous
Unsentenced 101 7 46 52 11 7 1 17 242
Sentenced 104 17 30 63 15 4 3 13 247
Total 204 24 75 115 26 11 4 30 489
Non-Indigenous
Unsentenced 99 36 29 23 15 14 5 1 223
Sentenced 111 82 13 16 17 10 1 2 252
Total 211 118 42 39 32 24 7 3 475
June Quarter 2010
Indigenous
Unsentenced 97 6 57 57 14 6 6 17 260
Sentenced 113 20 29 70 20 2 3 9 266
Total 210 26 85 127 34 8 10 25 526
Non-Indigenous
Unsentenced 111 42 30 28 13 14 7 2 247
Sentenced 98 105 19 28 16 4 4 1 274
Total 208 147 49 56 29 19 11 3 522
June Quarter 2011
Indigenous
Unsentenced 97 4 49 61 16 3 4 13 248
Sentenced 88 17 25 74 9 2 6 17 239
Total 185 21 74 136 25 5 10 31 487
Non-Indigenous
Unsentenced 93 40 45 37 21 10 5 1 252
Sentenced 94 133 20 27 13 10 6 - 303
Total 187 172 65 64 35 20 11 1 555

a: Numbers may not sum to totals due to rounding

b: Totals include those with unknown Indigenous status

Source: AIHW 2012b

Jurisdiction of young people on custodial remand

The proportion of all young people in detention who are remanded rather than sentenced also varies considerably by jurisdiction. As shown in Table 2, since 2007, Queensland has had a consistently higher proportion of young people on custodial remand (approximately two-thirds) than the other jurisdictions. During this time, approximately half of all detained young people in both New South Wales and Western Australia have been on remand compared with approximately one-quarter of detained young people in Victoria. Proportions fluctuated in South Australia, Tasmania, the Northern Territory and the Australian Capital Territory, as might be expected in jurisdictions with small populations.

As described in more detail below, an increase in the proportion of young people on custodial remand may reflect an increase in the rate of young people on custodial remand or a decrease in the rate of sentenced young people in detention. Rates per 100,000 population provide a better measure of trends in the use of custodial remand for young people. These are outlined in the following section.

Rates per 100,000 of young people on custodial remand

Calculating the rate of young people on custodial remand per 100,000 young people in the general population provides a clearer picture of the use of custodial remand for young people in Australia. This approach provides both a better indication of trends in the use of custodial remand over time, by controlling for increases in population over time, and accurate comparisons to be made among jurisdictions and between Indigenous and non-Indigenous young people (it should nonetheless be noted that data on crime and criminal justice are prone to inaccuracies and misinterpretation, and should be considered cautiously—see Weatherburn 2011).

There was a slight decrease in the national rate of Indigenous young people on custodial remand from June 2007 to June 2011 from 274 young people per 100,000 population to 222 young people per 100,000 population (see Table 5). Overall, however, Indigenous young people have remained more than 20 times more likely to be on custodial remand compared with the rate for non-Indigenous young people, which has remained steady at around 10 per 100,000. The rate of all young people on custodial remand on an average night also remained steady during this time at around 20 per 100,000 (see Table 5 and Figure 2).

Figure 2 Young people (10 to 17 year olds) on custodial remand on an average night in Australia, by Indigenous status, June Quarter 2007 to June Quarter 2011 (rate per 100,000 population)

Source: Adapted from AIHW 2012b

Table 5 Rate of young people on custodial remand on an average night by Indigenous status and jurisdiction, June Quarter 2007 to June Quarter 2011 (rate per 100,000 population)a,b
NSW Vic Qld WA SA Tas ACT NT Aust
Indigenous
Q2 2007 311 np 246 434 155 165 np 260 274
Q3 267 81 203 390 138 185 np 211 237
Q4 259 86 189 397 172 166 681 186 233
Q1 2008 321 88 230 600 225 186 784 204 297
Q2 351 106 182 460 236 253 np 154 270
Q3 321 102 128 346 157 214 658 102 220
Q4 324 98 146 412 250 np 682 158 242
Q1 2009 299 109 142 385 215 np np 155 226
Q2 303 97 153 377 180 182 np 140 226
Q3 266 96 146 389 209 205 np 119 215
Q4 328 136 162 420 179 np np 72 235
Q1 2010 306 160 207 500 256 157 np 107 265
Q2 293 92 188 391 212 163 640 145 239
Q3 284 np 170 415 241 np np 172 233
Q4 226 144 181 415 159 np 752 212 224
Q1 2011 299 74 169 461 276 np 1,029 223 255
Q2 268 np 161 437 259 np np 114 222
Non-Indigenous
Q2 2007 10 4 9 9 9 23 15 np 8
Q3 11 4 9 7 9 17 np np 8
Q4 12 5 8 9 12 17 27 np 9
Q1 2008 14 6 9 10 12 11 21 np 10
Q2 16 7 7 10 10 22 np np 11
Q3 16 6 6 8 9 17 np np 10
Q4 16 4 6 8 11 25 16 np 10
Q1 2009 14 6 5 8 10 23 15 np 9
Q2 12 6 6 10 8 25 15 np 9
Q3 12 6 8 13 12 26 22 np 10
Q4 12 6 8 8 9 19 17 np 9
Q1 2010 12 7 8 12 10 27 24 np 10
Q2 13 7 7 12 8 27 21 np 10
Q3 12 6 8 8 10 20 35 np 9
Q4 11 6 7 8 9 22 22 np 9
Q1 2011 14 7 9 13 12 15 20 np 11
Q2 12 7 9 15 12 20 np np 11
Total
Q2 2007 23 4 23 33 13 33 24 113 20
Q3 22 5 21 29 13 29 22 98 19
Q4 23 6 19 31 17 28 43 88 19
Q1 2008 27 7 23 44 19 23 39 94 23
Q2 31 8 18 36 17 38 24 74 23
Q3 30 7 13 28 14 31 25 48 20
Q4 30 5 15 31 19 32 32 73 21
Q1 2009 27 7 14 30 17 30 24 70 19
Q2 25 8 16 31 14 36 18 65 19
Q3 23 7 16 34 19 39 31 52 20
Q4 26 8 18 32 15 27 24 37 20
Q1 2010 25 9 21 40 19 36 37 52 22
Q2 26 8 19 34 15 36 36 68 21
Q3 23 7 19 32 18 25 46 76 20
Q4 21 7 19 32 15 22 39 94 19
Q1 2011 26 8 19 39 22 17 44 103 22
Q2 23 7 19 39 21 24 23 54 20

a: Rates calculated using ABS data (see AIHW 2012b)

b: Rates are not published where there were fewer than 5 people or due confidentiality or other concerns about the quality of the data (see AIHW 2012b). Such data are recorded as np

Source: Adapted from AIHW 2012b

Data from the AIC’s Juveniles in Detention in Australia dataset indicate that the rate of young people on custodial remand in Australia remained fairly stable between 1981 and 2004, before a substantial increase or ‘spike’ between about 2004 and 2008 (see Figure 3). In 1981, the average rate of young people on custodial remand per night was 12 per 100,000; by 2008, the average rate was 23 per 100,000. Simultaneously, the rate per 100,000 young people in sentenced detention decreased from 44 to 15. This indicates that the steady increase in the proportion of all detained young people who are on custodial remand was largely the result of a decrease in the rate of young people in sentenced detention. This decrease may have resulted from fewer young people being sentenced to detention, young people being sentenced to shorter periods of detention, or a combination of these two factors.

Figure 3 Young people aged 10–17 years in detention in Australia by legal status from 1981–2008 (rate per 100,000 population)

Note: Population statistics sourced from ABS 2010 for those aged 10 to 17 years in Australia. Numbers in detention are annual averages of quarterly counts. Remand numbers for 1991 may include young people awaiting matters for protection issues. Rates exclude the quarterly counts for Victoria for Q4 1991 and Q1 1992. Rates exclude quarterly counts for South Australia and Victoria for Q3 1992 and Q4 1992. Rates exclude quarterly counts for South Australia for Q1 1993 and Q2 1993. Therefore, averages for the years 1991, 1992 and 1993 only use quarters for which there are data for all jurisdictions to calculate the annual average

Source: AIC Juveniles in detention dataset [computer file]

As outlined above, data from the AIHW’s Juvenile Justice National Minimum Data Set indicate that since 2007, the rate of young people on custodial remand on an average night in Australia has remained stable, at about 20 young people per 100,000 in the population. While these two datasets measure the rate of young people on remand in different ways and over different time periods, taken together they suggest that nationally, an increase in the rate of young people on remand occurred in the mid-2000s and that this rate has since stabilised. Although technically the rate of young people on custodial remand nearly doubled between 1981 and 2008, it is important to recognise that while the use of custodial remand has increased and needs to be assessed, custodial remand still affects but a small number of young people each year.

The rate per 100,000 population of young people on custodial remand on an average night varied by jurisdiction over the four year period from June Quarter 2007 to June Quarter 2011 (see Figure 4). Although fluctuating, over this four year period the Northern Territory consistently had the highest rate of young people on custodial remand and Victoria consistently had the lowest. Queensland and South Australia had similar trends, staying approximately equal with or below the national rate. The rate for Tasmania and the Australian Capital Territory fluctuate considerably during the four years, as would be expected given the very low numbers of young people in detention in these small jurisdictions. The NSW rate has been fairly consistent during the four years, at slightly above the national rate. Despite some fluctuation, Western Australia’s rate has also remained fairly stable and consistently above the national rate.

Figure 4 Young people (10 to 17 year olds) on custodial remand on an average night by jurisdiction (rate per 100,000 population)

Source: Adapted from AIHW 2012b

Figures 5 to 12 show young people per 100,000 population on custodial remand on an average night by Indigenous status, for each jurisdiction. These Figures indicate that the rate per 100,000 young people on custodial remand is much higher for Indigenous than non-Indigenous young people in all jurisdictions. Rates of Indigenous young people on custodial remand are, however, higher in some jurisdictions than others. Due to concerns about confidentiality, data are not reported by the AIHW when there are fewer than five individual young people on custodial remand. As a result, and as can be seen in Figure 11, data are not available for the Australian Capital Territory for all quarters. Further, the rate of non-Indigenous young people on custodial remand in the Northern Territory is so low that no data have been reported (see Figure 12).

Figure 5 Young people (10 to 17 year olds) on custodial remand on an average night in New South Wales by Indigenous status, June Quarter 2007 to June Quarter 2011 (rate per 100,000 population)

Source: Adapted from AIHW 2012b

Figure 6 Young people (10 to 17 year olds) on custodial remand on an average night in Victoria by Indigenous status, June Quarter 2007 to June Quarter 2011 (rate per 100,000 population)

Note: Rates (and therefore rate ratio) are not published where there were fewer than five people or due confidentiality or other concerns about the quality of the data (see AIHW 2012b)

Source: Adapted from AIHW 2012b

Figure 7 Young people (10 to 17 year olds) on custodial remand on an average night in Queensland by Indigenous status, June Quarter 2007 to June Quarter 2011 (rate per 100,000 population)

Source: Adapted from AIHW 2012b

Figure 8 Young people (10 to 17 year olds) on custodial remand on an average night in Western Australia by Indigenous status, June Quarter 2007 to June Quarter 2011 (rate per 100,000 population)

Source: Adapted from AIHW 2012b

Figure 9 Young people (10 to 17 year olds) on custodial remand on an average night in South Australia by Indigenous status, June Quarter 2007 to June Quarter 2011 (rate per 100,000 population)

Source: Adapted from AIHW 2012b

Figure 10 Young people (10 to 17 year olds) on custodial remand on an average night in Tasmania by Indigenous status, June Quarter 2007 to June Quarter 2011 (rate per 1,000 population)

Note: Rates are not published where there were fewer than 5 people or due confidentiality or other concerns about the quality of the data (see AIHW 2012b)

Source: Adapted from AIHW 2012b

Figure 11 Young people (10 to 17 year olds) on custodial remand on an average night in Australian Capital Territory by Indigenous status, June Quarter 2007 to June Quarter 2011 (rate per 100,000 population)

Note: Rates are not published where there were fewer than five people or due confidentiality or other concerns about the quality of the data (see AIHW 2012b)

Source: Adapted from AIHW 2012b

Figure 12 Young people (10 to 17 year olds) on custodial remand on an average night in the Northern Territory by Indigenous status, June Quarter 2007 to June Quarter 2011 (rate per 100,000 population)

Note: Rates are not published where there were fewer than 5 people or due confidentiality or other concerns about the quality of the data (see AIHW 2012b)

Source: Adapted from AIHW 2012b

Figure 13 Rate ratio of Indigenous to non-Indigenous young people (10 to 17 years) in detention on an average day by legal status, June Quarter 2007 to June Quarter 2011

Source: AIHW 2012b

Indigenous overrepresentation

As can be seen in Figures 5 to 12, the rate per 100,000 population of Indigenous young people on custodial remand is higher than the rate of non-Indigenous young people in every jurisdiction.

Nationally, as at June 2011, Indigenous young people were 20 times as likely to be on custodial remand as their non-Indigenous counterparts (see Table 6). This figure should be interpreted with caution as data were not available for all jurisdictions, and the overrepresentation of Indigenous young people has been more pronounced for every other quarter since June 2007 (see Table 6).

Table 6 Rate ratioa of Indigenous to non-Indigenous young people on custodial remand (10 to 17 years) on an average day by jurisdiction, June Quarter 2007 to June Quarter 2011b
NSW Vic Qld WA SA Tas ACT NT Aust
Q2 2007 31.10 np 27.33 48.22 17.22 7.17 np np 34.25
Q3 24.27 20.25 22.56 55.71 15.33 10.88 np np 29.63
Q4 21.58 17.20 23.63 44.11 14.33 9.76 25.22 np 25.89
Q1 2008 22.93 14.67 25.56 60.00 18.75 16.91 37.33 np 29.70
Q2 21.94 15.14 26.00 46.00 23.60 11.50 np np 24.55
Q3 20.06 17.00 21.33 43.25 17.44 12.59 np np 22.00
Q4 20.25 24.50 24.33 51.50 22.73 np 42.63 np 24.20
Q1 2009 21.36 18.17 28.40 48.13 21.50 np np np 25.11
Q2 25.25 16.17 25.50 37.70 22.50 7.28 np np 25.11
Q3 22.17 16.00 18.25 29.92 17.42 7.88 np np 21.50
Q4 27.33 22.67 20.25 52.50 19.89 np np np 26.11
Q1 2010 25.50 22.86 25.88 41.67 25.60 5.81 np np 26.50
Q2 22.54 13.14 26.86 32.58 26.50 6.04 30.48 np 23.90
Q3 23.67 np 21.25 51.88 24.10 np np np 25.89
Q4 20.55 24.00 25.86 51.88 17.67 np 34.18 np 24.89
Q1 2011 21.36 10.57 18.78 35.46 23.00 np 51.45 np 23.18
Q2 22.33 np 17.89 29.13 21.58 np np np 20.18

a: Rate ratio calculated by dividing the Indigenous rate by the non-Indigenous rate

b: Rates (and therefore rate ratio) are not published where there were fewer than 5 people or due confidentiality or other concerns about the quality of the data (see AIHW 2012b). Such data are recorded as np

Source: Adapted from AIHW 2012b

The overrepresentation of Indigenous young people on custodial remand also varies across jurisdictions. At June 2011, Indigenous young people were 29 times as likely as non-Indigenous young people to be on custodial remand as non-Indigenous young people in Western Australia, 22 times as likely in New South Wales and South Australia, and 18 times as likely in Queensland (see Table 6). Data on Indigenous overrepresentation were not available for June 2011 for the remaining jurisdictions (due primarily to concerns about the quality of the data because of the small numbers of Indigenous young people on custodial remand in these jurisdictions).

It is important, however, to consider this overrepresentation of Indigenous young people on custodial remand in the context of their overrepresentation in the youth justice system generally. Research consistently shows, for example, that Indigenous young people are heavily overrepresented in detention generally (see AIHW 2012a; Richards & Lyneham 2010); further, Indigenous young people are more heavily overrepresented among sentenced young people in detention than those on custodial remand (see Figure 13). A study of young people on custodial remand in Queensland similarly found that Indigenous status was not an independent predictor of decisions to remand young people in custody and that the overrepresentation of Indigenous young people on custodial remand was not significant once current and prior offence details, case history, gender, the youth justice centre handling the case and child protection history were statistically controlled for (Mazerolle & Sanderson 2008).

A logical question to consider in this context is whether Indigenous young people are overrepresented among young people arrested by police (as decisions about whether a young person is to be granted bail or remanded in custody are only relevant following an arrest by police; Clare et al. 2011; King, Bamford & Sarre 2009; Noetic Solutions 2010; Roth 2010). Data on arrest decisions relating to young people are very limited in Australia, with few jurisdictions reporting these data (Richards 2009). The limited data available suggest, however, that Indigenous young people are overrepresented among young people arrested by police. In Western Australia in 2005 (the latest period for which data have been published), 50 percent of all young people arrested by police were Indigenous, despite their comprising only five percent of young people in Western Australia at the time (see Richards 2009). Similarly, in South Australia during 2007 (the latest period for which data have been published), a higher proportion of Indigenous (68%) than non-Indigenous (49%) young people who came into contact with the police were arrested (OCSAR 2010).

Caveats about data on Indigenous young people

It should be noted that overrepresentation ratios reflect the rate of Indigenous young people in detention relative to the rate of non-Indigenous young people. Rate ratios are calculated by dividing the Indigenous rate of incarceration by the non-Indigenous rate. A high overrepresentation rate ratio may therefore be due to there being a high number of Indigenous young people on custodial remand relative to non-Indigenous young people, or a low number of non-Indigenous young people in unsentenced detention relative to Indigenous young people. It should be noted that overrepresentation rate ratios can be highly variable in jurisdictions with:

  • small populations of Indigenous people;
  • small numbers of young people in detention; and/or
  • small numbers of Indigenous young people in detention.

Further, it should be noted that high numbers of young people with ‘unknown’ Indigenous status can affect calculations of rates of Indigenous and non-Indigenous young people in detention, including on custodial remand, and therefore overrepresentation rate ratios. Hunter and Ayyar’s (2009) research highlights the importance of addressing data quality on the Indigenous status of those who come into contact with the youth justice system (see also Hardman 2010 for a discussion of the limitations of data on Indigenous status in the criminal justice context). Hunter and Ayyar’s (2009: 16) research into the quality of data where Indigenous status is provided in administrative data collections found that Indigenous involvement in the criminal justice system will be severely underestimated if no attempt is made to establish or estimate the true identity of the large number of people with unknown Aboriginal or Torres Strait Islander status within the criminal justice system.

The likelihood of an underestimation of the number of Indigenous young people is important to bear in mind when interpreting the data presented in this report (see further AIHW 2012c; Hunter & Ayyar 2011).

Length of time young people are remanded in custody

Both the total number of individual young people on custodial remand and the length of time each young person spends on custodial remand affect the average nightly number. Table 7 shows the average length of time young people spent on custodial remand from 2006–07 to 2010–11. Average length of time was calculated from the summed length of all periods of custodial remand that occurred within the financial year divided by the number of young people who spent time on custodial remand (AIHW 2011). As Western Australia and the Northern Territory did not supply data for 2008–09, 2009–10 and 2010–11, data are not available for these years, although some totals include aggregate data provided by these jurisdictions (see Table 7). Although a national trend is therefore difficult to determine, the length of time for which young people are remanded in custody appears stable with an average of 36 days in 2006–07 and 35 days in 2010–11 with little variation in between. It is possible, however, that a different picture would emerge if all totals included data from Western Australia and the Northern Territory, particularly given that the NT’s averages were much higher than the other jurisdictions’ averages for 2006–07 and 2007–08.

Table 7 Average lengtha of time young people spent on custodial remand by Indigenous status and jurisdiction, 2006–07 to 2010–11 (days)b
NSW Vic Qld WA SA Tas ACT NT Aust excl WA & NTc
2006–07
Indigenous 41 42 63 38 24 65 37 94 46
Non-Indigenous 25 38 52 26 20 75 31 76 31
Unknown 20 16 0 0 3 0 0 0 19
Total 31 38 58 34 21 71 32 92 36
2007–08
Indigenous 42 39 64 40 26 84 55 79 47
Non-Indigenous 31 39 51 29 22 45 24 63 33
Unknown 19 0 6 0 10 0 3 0 18
Total 35 39 58 36 24 58 32 77 38
2008–09
Indigenous 44 45 50 n/a 23 65 52 n/a 43
Non-Indigenous 33 38 33 n/a 21 51 18 n/a 32
Unknown 32 1 0 n/a 3 0 0 n/a 31
Total 37 39 42 n/a 22 55 25 n/a 36
2009–10
Indigenous 43 47 54 n/a 26 59 49 n/a 45
Non-Indigenous 30 36 38 n/a 22 51 23 n/a 31
Unknown 16 0 34 n/a 4 0 1 n/a 16
Total 35 38 46 n/a 24 53 29 n/a 36
2010–11
Indigenous 39 35 49 n/a 28 57 50 n/a 41
Non-Indigenous 28 37 43 n/a 26 56 27 n/a 32
Unknown 15 9 104 n/a 12 0 0 n/a 17
Total 32 37 47 n/a 26 56 34 n/a 35

a: Average duration calculated from the summed length of periods of unsentenced detention that occurred within the financial year

b: Western Australia and Northern Territory did not supply data for 2008–09 to 2010–11 (see AIHW 2012a). Reported as n/a

c: Totals for 2010–11 include aggregate data supplied by Western Australia and 2007–08 data for the Northern Territory, where available (see AIHW 2012a)

Source: AIHW 2012a (Data for years 2007–08 to 2010–11); AIHW 2011a (Data for year 2006–07)

There were no clear trends in the average length of time young people spent on remand in any of the jurisdictions for which data are consistently available, with the possible exception of Queensland, where the average length of time young people spent on remand decreased from 58 days in 2006–07 and 2007–08 to 47 days in 2010–11.

This finding appears to contrast with the findings of Vignaendra et al. (2009), who reported the average length of young people’s stay on custodial remand in New South Wales from January 2006 to February 2009. They found that following changes to the NSW Bail Act in December 2007, the average length of time young people spent on custodial remand in New South Wales increased substantially, from approximately 15 days to 34 days. This was confirmed following a revision of the data in July 2012 (Department of Attorney-General and Justice personal communication 30 January 2013). These changes involved restricting the conditions in which bail can be reapplied for.

The distinction between counting rules used by AIHW and those in Vignaendra et al.’s report (2009) is important in explaining the contrasting findings. The data used in Vignaendra et al.’s report (2009) reflect the average length of stay on remand (by remand period), while the AIHW data used in this report reflect the average length of stay by an individual during a financial year.

That is, while Vignaendra et al. (2009) calculated the average length of an individual period of custodial remand, AIHW data capture multiple periods of remand served during the year. The AIHW (2012a) reported that nearly half (44%) of all young people who completed at least one period of custodial remand during 2010–11 completed multiple periods and that 13 percent completed four or more periods. Therefore, although single remand periods may have lengthened significantly, it is unclear whether the total time young people spent in custodial remand during the year also significantly increased.

The average length of time young people spent on custodial remand did, however, vary across the jurisdictions, with South Australia having consistently shorter averages, and Tasmania and Queensland consistently longer averages. Data for Western Australia and the Northern Territory were not available for 2008–09, 2009–10 and 2010–11. Prior to this, however, the average length of time young people spent on remand in Western Australia was close to the national average. For the Northern Territory, the average length of time was much higher than the national average (see Table 7).

Table 8 shows the median length of young people’s completed periods of custodial remand from 2007–08 to 2010–11. Nationally, the median length of time of young people’s completed remand periods was three days for the 2010–11 period (see Table 8). The difference between the average and median length of time that young people spend on custodial remand is due to young people being placed on custodial remand multiple times during the year. The difference is quite pronounced, suggesting that a small proportion of young people are placed on custodial remand repeatedly and/or that a small proportion of young people are placed on custodial remand for very long periods of time.

Nationally, Indigenous young people were held on remand, on average, longer than non-Indigenous young people. This was also the case in each jurisdiction and for each year, almost without exception, although this disparity was more pronounced in some jurisdictions (Queensland, Western Australia, Tasmania, the Australian Capital Territory and the Northern Territory; see Table 7).

Proportion of young people sentenced to detention following custodial remand

Concern has been raised that many young people who spend time on custodial remand do not go on to serve a period of sentenced detention (eg NSW LRC 2012). This is seen as problematic because if the young person’s (alleged) offending is not serious enough to justify a sentence of detention, they should not be deemed risky enough to detain on custodial remand.

The AIHW (2012a) reports that nationally, in 2010–11, about one-third of all remand periods served by young people were followed by an order of sentenced detention. This varied substantially across the jurisdictions, from seven percent in Queensland to 67 percent in New South Wales (see AIHW 2012a). These figures relate to young people whose period of custodial remand is followed immediately by a period of sentenced detention. Figures provided to the NSW Law Reform Commission (2012) show that in New South Wales during 2010–11, just 18 percent of young people who had been on remand at any stage during the proceedings received a sentence of detention.

The low proportion of young people on custodial remand who go on to spend time in sentenced detention is sometimes considered to be the result of Magistrates ‘backdating’ sentences (ie ‘cases where the court believes a short custodial sentence is appropriate but does not impose such a sentence because of the time spent in custody on remand’ (NSW LRC 2012: 72)). However, the NSW Law Reform Commission (2012: 72) argues that such cases are unlikely to comprise many of the large proportion of cases in which remand is not followed by a period of sentenced detention, as this is contrary to good sentencing practice:

What should be done in such a case is to backdate an appropriate custodial sentence to take into account the time spent in custody on remand. It is reasonable to assume that this happens in most cases.

It was found, however, that in some jurisdictions at least, an informal process of backdating or ‘discounting’ occurs. To be clear, this does not mean that young people receive shorter custodial sentences, but that the time they have already spent in custody is taken into account at sentencing. There are no formal guidelines or formulae for calculating this as there are in some international jurisdictions (see Webster, Doob & Myers 2009 on the situation in Canada); one Magistrate described this process as an ‘artificial mathematical exercise’.

As another Magistrate commented, however, it is ‘inevitable’ that the time a young person has spent on custodial remand will be influential at sentencing. Lending support to the view of the NSW Law Reform Commission (2012), another Magistrate noted that although informal backdating occurs, it is rare for periods spent on custodial remand to equate exactly with an appropriate sentence. As a number of Magistrates interviewed for this study noted, an alternative explanation for the high proportion of remanded young people not subsequently sentenced to detention is that some of the young people’s criminogenic needs are addressed while on remand, rendering detention unnecessary by the time sentencing takes place. This assumes that interventions to address criminogenic needs are available to young people on custodial remand, which as discussed later in this report, is not always the case.

Summary

Approximately half of all young people in detention in Australia are on custodial remand rather than sentenced. Nationally, and in each jurisdiction, there has been no substantial recent increase in the proportion of detained young people who are on remand on an average night, and no recent increase in the length of time young people spend on custodial remand (see above the discussion about Vignaendra et al’s (2009) findings in New South Wales). While there was an increase in the rate per 100,000 young people on custodial remand in the mid-2000s, the rate has been relatively stable since then.

Further, the proportion of all young people in detention who are on remand rather than sentenced has increased steadily in the longer term. The above analysis suggests that this long-term increase is largely the result of fewer young people being sentenced to detention (or young people being sentenced to shorter periods of detention, or a combination of these two factors). In other words, while the rate of young people placed on custodial remand has increased, the rate of young people sentenced to detention has decreased more substantially, thereby increasing the proportion of all detained young people who are on custodial remand as a proportion of all young people in detention.

Although concerns have been raised about the number of Indigenous young people on custodial remand, there has been no apparent difference between the proportion of Indigenous and non-Indigenous young people on remand in recent years. That is, about half of all Indigenous young people in detention are on remand rather than sentenced and the same is true of non-Indigenous young people.

Further, although Indigenous young people are overrepresented on custodial remand in every jurisdiction, the overrepresentation is much higher among sentenced young people in detention than those in custodial remand. That is, while the overrepresentation of Indigenous young people in the criminal justice system is a serious social problem in Australia, the use of custodial remand for Indigenous young people is not itself more problematic than other stages of the youth justice system. It is the case, however, that Indigenous young people spend, on average, substantially more time on custodial remand than non-Indigenous young people; this finding warrants further consideration.

Although the increasing use of custodial remand for young people appears less profound than originally appeared to be the case, the number of young people on custodial remand remains a concern. As outlined above, each of Australia’s jurisdictions has in place legislation that recognises that detention should be used as a last resort for young people and Australia is a signatory to a number of United Nations instruments (eg the Convention on the Rights of the Child (United Nations 1989)) that stipulate that detention is to be used as a last resort for young people (Appendix 1 outlines the guidance provided by United Nations instruments on the use of custodial remand for young people). Further, as described above, the experience of custodial remand can result in a wide range of negative outcomes for young people, many of which are criminogenic (ie foster offending behaviour), and for the community.

Table 8 Median lengtha of completed custodial remand periods of young people, by Indigenous status and jurisdiction, 2007–08 to 2010–11 (days)b
NSW Vic Qld WA SA Tas ACT NT Austc
2007–08
Indigenous n/a 16 20 14 6 36 9 19 14
Non-Indigenous n/a 11 12 8 7 16 6 28 9
Unknownd n/a n/a n/a n/a n/a n/a n/a n/a n/a
Total n/a 13 16 12 6 18 6 21 11
2008–09
Indigenous 8 10 14 n/a 3 28 7 n/a 8
Non-Indigenous 3 12 7 n/a 3 11 2 n/a 3
Unknown n/a n/a n/a n/a n/a n/a n/a n/a n/a
Total 4 12 10 n/a 3 17 2 n/a 5
2009–10
Indigenous 5 18 15 n/a 3 15 6 n/a 7
Non-Indigenous 2 12 6 n/a 3 15 2 n/a 3
Unknown 2 np 2 n/a 2 np np n/a 2
Total 3 13 11 n/a 3 15 3 n/a 4
2010–11
Indigenous 3 9 12 n/a 3 19 3 n/a 6
Non-Indigenous 2 10 7 n/a 2 16 2 n/a 3
Unknown 2 np 14 n/a 3 np np n/a 2
Total 2 10 9 n/a 3 17 3 n/a 3

a: Median lengths were not calculated when there were fewer than five periods (see AIHW 2012a). Reported as np

b: The durations of periods of remand separated by a transfer to another remand or detention centre were summed (see AIHW 2012a)

c: Total Australia excludes NSW for 2007–08 and WA and NT for 2008–09, 2009–10, 2010–11 as these states did not supply data for these years (see AIHW 2012a). Missing data are reported as n/a

d: Unknown category was not reported by AIHW in reports covering 2007–08 and 2008/09, recorded as n/a

Source: AIHW 2012a (data for 2010–11); AIHW 2011a (data for 2009–10); AIHW 2011b (data for 2008–09); AIHW 2009 (data for 2007–08)