The boy, identified only as "Joshua," is one of thousands of Aborigines in the Western Australia justice system. Aborigines make up only four percent of the state’s youth population, but are 60 to 70 percent of the youth in the state’s detention care, said Harry Blagg of the University of Western Australia’s Crime Research Centre.
Roughly 80 percent of non-Aboriginal youth who commit crimes are diverted from the criminal justice system by police discretionary powers, Blagg said. Aboriginal youth are less likely to be diverted from the justice system, are more likely to be stopped by the police, and are more likely to be prosecuted, he said.
"They [Aboriginal youth] are about 30 times more likely to be arrested by the police [than non-Aboriginal youth]," Blagg said. "It’s an endemic problem based on our colonial history, a history we’re not prepared to face up to."
In 2003 the Crime Centre found that 138 per 1,000 indigenous people were incarcerated, compared to only 12 per 1,000 non-indigenous people. Twenty-eight percent of all arrests in 2003 were indigenous youth, Blagg said.
Joshua had already been arrested three times before the ice cream incident, and was on conditional release probation after being brought up for multiple charges of burglary in February, meeting the "three-strike" rule under Western Australia’s mandatory sentencing laws. After three offenses, the rule says, the offender is subject to serve 12 months in jail, and must serve at least half of that sentence before being eligible for conditional release. If the conditional release order is breached, according to the rule, the offender serves up to at least six months under mandatory sentencing laws. But Joshua was ultimately released because the law also states that offenses on the level of stealing ice cream are not severe enough to be punishable by detention.
According to a 2003 report by the Aboriginal and Torres Strait Islanders Justice Commissioner on behalf of the Human Rights and Equal Opportunity Commission of Australia Aboriginals, juveniles make up 81 percent of the three-strike cases in Western Australia.
Most of the three-strike cases involve offenders from remote areas and crimes such as stealing food or small amounts of money. "They’re not really serious offenses," Blagg said. Western Australia remains the only state in Australia under which mandatory sentencing laws are still in effect, and also has one of the highest rates of Aboriginal juvenile incarceration and criminal activity, he said.
"There’s a tendency for the police to over-police Aboriginal youth," Blagg said. "They are much more likely to use arrest as a sanction for a first resort." Because the Perth court is Western Australia’s only Children’s Court, youth are often taken miles from their communities and held for days or weeks before a hearing, Blagg said.
"At the same time that we’re trying to build strategies to help communities, we have these Draconian policies—so they have become part of the problem," he said. "There are whole generations of Aboriginal youth who think it’s normal to go to prison."
The Australian reported that because of Joshua’s most recent incarceration, he was abandoned by his father, who said he could no longer cope, and by his mother, who has a history of alcohol abuse. Documents from the Aboriginal Legal Service said that all of the Aboriginal and Torres Strait Islander youth who were denied conditional release orders between 1997 and 1999 came from broken families or had problems that arose from substance abuse and lack of accommodations.
Because Aboriginal communities suffer most from low employment rates, government policies that have taken land away, and high rates of alcoholism and family violence, Aboriginal families are more likely to suffer the problems that have been associated with higher rates of crime.
"It’s historical that Aboriginal people have been improperly dealt with," said Richard Davis, a professor of anthropology at the University of Western Australia who specializes in Aboriginal Australia. He cited the results of the 1989 Royal Commission into Aboriginal Deaths, which analyzed deaths in custody and the effects of incarceration on Aboriginal peoples and found that among the relatively high number of deaths in custody were young Aboriginal men who had been in and out of the court system before the age of 20. Their deaths were mostly due to sickness and suicide, but the commission found that Aborigines lacked sufficient care from police officers that could have ultimately saved them.
While no reports have shown that Joshua suffered abuse, his 12-day incarceration shows that the Western Australian justice system needs to move into the 21st century, Davis said. Fifteen to 20 years ago, incidents in which Aboriginal peoples were treated like Joshua were common, he said.
"[Now], it’s a throwback, it’s bizarre," he said.
