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“This is what happens when hard cases make bad law”

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Changes to how young people are sentenced for serious crimes will crush any hope of them leading effective lives outside the justice system, says a lawyer and researcher who has interviewed every juvenile offender serving a current sentence for murder in South Australia.

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Mother of two Nicole Tucker was driving home in October 2016 after dropping off her daughter at a friend’s house, when a 15-year-old boy driving a stolen ute collided into her car at 188km/hr at the intersection of Main South Road and the Southern Expressway.

Tucker died instantly as her car burst into flames. The car was thrown onto a second vehicle – leaving another driver with extensive neck injuries.

A third driver was also injured as the young driver of the stolen car – who remained unscathed – attempted to flee the scene.

The judge presiding over the boy’s case felt it appropriate that he be sentenced as an adult given the speed at which he was driving, his decision to run from the scene and his breach of existing court orders.

While the judge described the boy’s crime as “at the extreme end of seriousness”, South Australia’s Young Offenders Act required a sentence take into consideration the juvenile’s “care, correction and guidance”.

The boy was given three years, four months and one week in prison – a sentence Tucker’s family, some politicians and the press criticised as being too lenient.

“The media really grabbed onto cases like these and just started condemning the laws – attacking what they described as these little crims and hoons who were out to maim and murder people,” says practising solicitor and researcher Simone Deegan.

“There was that conversation going on and there was a deal of pressure for the laws to change to try and stop these crimes.”

Spurred on by the public outcry, the then Labor Government introduced tougher juvenile sentencing laws late last year to ensure young people who face adult courts are sentenced as adults.

For children convicted of murder, this essentially means a mandatory minimum sentence of 20 years non-parole, plus a lifetime on parole once they are released.

“We’re waiting to see what the fallout of that is when it happens,” says Deegan.

“No young person yet has come before the court for murder with these new laws, but that’s only a matter of time.”

Deegan, a researcher at Flinders University, has interviewed all of South Australia’s juvenile murderers who are currently serving a sentence – 19 of them, some aged as young as 14.

When all you get is the stick and not the carrot you don’t fear the stick any more and you don’t care about the carrot

She has identified similarities in the offenders’ backgrounds – a common pattern of social and economic disadvantage, unsettled childhoods and what she describes as “troubled conceptions of masculinity” that have culminated in crime.

“Trying to decouple their problematic behaviour from their dysfunctional, unorthodox, deprived backgrounds is really complex, if not impossible,” she says.

“It does tend to be people from lower socio-economic backgrounds.

“We know, unfortunately, which postcodes feed into the work of courts and prisons, we know they are more likely to suffer mental health problems and we know that they just bounce around schools or couch surfing.”

All of the children she interviewed had experienced violence either in the home, in their neighbourhood or in the wider community.

Tossed between schools, unable to find secure employment and restricted by their families’ limited incomes, Deegan says these children were lured into the fantasy of street fighter films and violent television programs.

“When all you get is the stick and not the carrot, you don’t fear the stick any more and you don’t care about the carrot,” she says.

“Certainly some of these people have very little else in their lives – they’re not proving their masculinity by sport or by education or employment, like the traditional ways that men or young boys generally do.

“The doors are closed and so it probably is ‘cool’ to relate to street fighters and heroes in movies that have a just cause or who are allowed to do whatever is necessary to uphold their values.”

There are stories of children whose parents told them to confront bullies at school by “taking him out the back and kicking the shit out of him”, stories of boys whose single mothers coaxed them into becoming the “man of the house” when “the responsibility is too great for a young person to shoulder gracefully”, and stories of children who, every time they left the house, were on the lookout for danger.

“It just steamrolls from there,” Deegan says. “They get drawn to groups who do violence or who have that violent identity.

“I remember one of the boys I interviewed said to me: ‘It’s like having all these brothers I never knew I had’.

“There was one who said: ‘We were all the bad kids of the neighbourhood and there would be other groups as well so we’d have this clash – they’d want to be the best and that’s how it all started’.

“People can do some surprisingly dumb stuff when they’re in groups …”

They’ve got these nooses around their necks that the system can just pull in

In 2012, two teenagers aged 16 and 17 pleaded guilty in the Supreme Court to murdering 87-year-old pensioner Anne Redman during an attempted burglary at her Seacliff home.

The court heard Redman was punched to the ground by one of the boys and held down as his accomplice retrieved a blunt hunting knife, which he later used to murder her.

According to Deegan, cases of “intentional, malicious murder” are rare.

More commonly, children found guilty of murder were involved in a fight that got horribly out of control.

“We’re talking about maybe one juvenile convicted of murder a year and yet we’re constantly told that we’re under threat by these predator kids that are out of control,” she says.

“The sad thing about these kids is that they might have been involved in 20 fights or crimes previously (when) everyone just dusted themselves off and picked themselves up and left, and this one time is when something sort of unforeseen happened and the fight went beyond its projected outcomes and someone has actually died.

“That’s not what they wanted to occur and it’s not what they thought was going to occur… ”

Deegan describes life in detention as “debilitating” for children – especially for those with long sentences.

“I’ve found from the people I’ve spoken to that hope seems to peak and drop and when it drops there is little to stop them from getting involved in the prison life,” she says.

“There are disciplinary infractions and they’re getting involved in drugs because they’ve just got so much time.

“The quandary is, the prison system is under so much strain with prisoner numbers that programming tends to be given or prioritised to people who have got the earliest release date.

“People with longer sentences aren’t exactly a priority in comparison to people who might only be doing six months, so they miss out on the opportunities to further their life.”

Deegan says further problems arise once offenders reach the age – normally 18 – when they are forced to make the transition from the juvenile to adult prison system.

It’s hard to really think how these people will be able to live their life beyond prison

She says there is a “disjuncture” between the juvenile and adult systems, which means offenders in the juvenile system often lose contact with their caseworkers once they move to the adult system.

“I spoke to one man who was close to completing Year 12, but then he got transferred over and despite him being a captive audience in the juvenile system for years, when he moved over he was never able to finish Year 12, which, as an Indigenous man, would have made the world of difference to him.

“They learn very quickly that they’re not in the juvenile system anymore and they’ve very much on the back-foot in how they cope and how they survive.”

Then there’s life on parole.

“After prison, they’re a population that is just so highly regulated,” Deegan says.

“These offenders do feel like they’re on a tightrope against the system the whole time.

“You can be doing all the right things – you can be signing in, staying off drugs and alcohol, living at a specific address and avoiding certain associates, but you’re not actually any closer into reintegrating into society, in fact, you might actually be even further back.

“They are having to ask for permission for everything they do, everywhere they go, everyone they see.

“They’ve got these nooses around their necks that the system can just pull in.”

Deegan mentions one of her interviewees who she says was “on the periphery” during a fatal stabbing which eventually resulted in him being convicted for murder.

“He was never entrenched in criminality – he just happened to be at the wrong place at the wrong time and ended up with this five-year conviction,” she says.

“He is now on lifetime parole – literally he will spend the rest of his life in this constant state of surveillance.

“He is and never was a violent boy but somehow he ended up in this situation which will affect him for the rest of his life.

“You have to think – what would have happened if he had been convicted under the new 20-year mandatory minimum?”

According to Deegan, the revised legislation is an “ill thought out knee-jerk” reaction to a series of rare but disturbing crimes.

“This is what happens when hard cases make bad law,” she says.

“There needs to be discretion – society should be protected from the wrongful acts of others but not all murders play out in the way people assume – luck can play a large role in whether a crime stays in the column of an assault or a murder.

“I tend to see adults do horrific offences getting similar sentences to what we’re going to be giving our children and I can’t fathom how that can be justice.

“It’s hard to really think how these people will be able to live their life beyond prison.

“You have to ask the question – will they ever be more than just an ex-offender or an ex-murderer?”

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