- In short: A 17-year-old who admitted assaulting jail staff was repeatedly confined to his cell with little respite as his mental health declined, a court has heard
- The judge said it was “unlikely the community’s going to be any safer” after he is released because of his treatment in jail
- CCTV released to the ABC gives a confronting insight into conditions in youth detention
A Children’s Court judge has lashed the “vicious cycle” of WA’s justice system which she says has “well and truly failed” a 17-year-old boy.
Judge Wendy Hughes was sentencing the teenager, who the ABC is calling Toby, for more than two dozen charges which he admitted to.
His most recent offences – which all occurred seven days after he was granted bail – included attempting to steal cars while armed with a machete and leading police on a 140kph chase which was ultimately aborted.
Judge Hughes told Toby it “broke my heart” to see him back before the court, and that in sentencing him to 12 months’ detention, she had to balance justice system’s struggle to care for him and his ADHD and conduct disorder diagnoses with the risk he posed to the community.
“When he gets out it’s unlikely the community’s going to be any safer … and that is a very sad point [to have reached],” she said.
This was partly because of Toby’s treatment inside detention, including the “instability and uncertainty” which she said was a factor in a number of assaults he committed on staff, and his worsening mental health, which included swallowing glass in an act of self-harm..
Some of those assaults, captured in footage released to The West Australian newspaper following a legal battle and obtained by the ABC, give a confronting insight into conditions in youth detention and the problems facing both young people and those tasked with protecting them.
The most recent incident happened in November last year when Toby pushed a youth custodial officer off a buggy being used to transport him because he wanted to find a fence to climb to kill himself.
Another incident happened in June 2022, when Banksia Hill was struggling under staff shortages.
Toby damaged three cells on one day alone and threatened to take his own life.
The Supreme Court last year declared Toby had been detained unlawfully almost every day for the entire month prior, spending up to 24 hours a day in confinement.
His mental health episode and suicide threats triggered the highest-level response under the Department of Justice’s protocols, including him being placed under constant supervision, but it was unclear if he was seen by a psychologist on the day.
At one stage Toby began damaging a staff toilet which he was using because his cell did not have one.
One of the youth custodial officers (YCOs) who helped bring Toby out could not recall any discussion about the teenager’s mental state or suicide threats before video captured a senior officer telling him to “go hard”, which he said he did not hear.
‘My legs are stuck’
Video of the incident shows at least four officers rushing into the bathroom to find Toby partially behind a wall, seemingly having removed a panel from it.
“Get out” and “pull him out” officers repeatedly yell in the chaos.
“I’m trying to get out … my legs are stuck. My legs are stuck. My legs are f***ing stuck man,” Toby tries to tell them.
He was eventually pulled out, screaming at officers and spitting in the face of one.
Figure four restraint used
Body-worn camera video of the incident shows Toby being placed in a ‘figure four’ restraint, which was standard practice at the time but was outlawed following a Four Corners investigation.
In Queensland and the Northern Territory the practice had been banned because of concerns around potential injury to children.
“Keep going until it [my leg] breaks,” Toby tells officers.
“Turn your cameras off and bash me,” he tells them before screaming as the officer executing the figure four pushes down harder.
Details in the Supreme Court case show he was then unlawfully confined for a further 21 days before being moved to Unit 18.
More self-harm threats
In August 2022 the Special Operations Group (SOG) – normally tasked with responding to major riots in adult prisons – was called into Unit 18 to move Toby from one cell to another after he had again been threatening self-harm, including suicide, and had damaged his cell.
In the video tendered in evidence, Toby appears to tie a ligature to the roof of his cell, before being asked to take it down by officers, which he does, before continuing to pace back and forth.
Four officers, who Toby’s lawyer described as “grown men armed like they’re at war” then breach the cell to find Toby sitting on his bed, not fighting back.
Toby was pushed down as officers restrained him.
During a trial last year, one officer involved was asked why he did not try to de-escalate the situation.
“That would open you up for a whole world of other things, things being thrown at you, getting assaulted, stabbed, faeces, urine, spitting, getting into a wrestle, escalating the use of force,” he told the court.
Leg irons, chain attached
Toby was then placed in a ‘three-point restraint’ — his hands cuffed, leg irons attached, and a chain locked in place to connect the two.
Staff described Toby smacking his head against the ground, thrashing out and generally not complying with instructions as he was taken to another cell.
One officer said he became “more distressed … a bit more aggressive” in his second cell, including making threats to kill himself and to assault officers.
“I’m definitely killing myself,” he tells officers as they restrain him on a bed.
Throughout the process two officers said they were bitten by Toby, one repeatedly, while the other was spat at in such a way it seeped through his protective equipment and onto his lips.
As the officers leave the cell, video shows Toby lying nearly motionless on his stomach, his hands and legs still chained together.
Later, an officer assigned to constantly watch Toby noticed he was trying to eat his mattress and cut himself with an object. SOG officers returned to remove the objects.
It resulted in what the boy’s lawyer described as a “violent assault”, despite one officer acknowledging he “wasn’t offering much resistance” as they entered.
The incident again involved an officer applying the figure-four restraint while the objects were removed.
As the restraint was released and the officers left, Toby again spat at one of them.
Toby had initially been charged with assaulting the officers, but the charges were dropped after the footage was played at trial.
Judge Hughes said Toby’s mental impairment both explained and mitigated his behaviour and meant he was unable to learn from his mistake.
This was complicated by violence and drugs in his family, as well as inter-generational trauma related to the Stolen Generation.
That left her in the difficult position of sentencing him because of the high risk of reoffending.
It would take “considerable effort and willpower” and a “drastic change” to Toby’s home life for things to turn around, but Judge Hughes said she was hopeful that would happen.
She had no criticism of officers’ conduct in handling Toby, telling him “we need more youth custodial officers to do their job … in order for your day to be better”.