In January this year a 13 year old boy’s mother was killed following an horrendous and sustained assault. His father has been charged with his mother’s murder and that matter has yet to proceed to a trial.

On 6 June 2017 the child appeared before Judge Greg Borchers in the Tennant Creek Youth Court, entering a guilty plea to damaging a government car, the doorway of the local bank and damage to a restaurant committed over two days in late May 2017. The child had more that $3,800 in outstanding fines from previous offences and was under a good behaviour bond imposed in March 2017.

The Northern Myth has been provided with a transcript of proceedings in the matter and, apart from brief comments from elsewhere below, I provide the following excerpts without comment as the matter is still before the courts. While under NT law it is possible to name the juvenile offender I have chosen not to do so at this time.

Following the presentation of relevant facts by the NT Police prosecutor, the child’s solicitor, Dev Bhutani of the Central Australian Aboriginal Legal Aid Service (CAALAS), began his submissions, noting the child’s age, prior offending and the “extremely difficult set of circumstances” that he was facing. He noted that his offending behaviour at multiple premises in front of CCTV cameras was “not only juvenile, but rather brazen.”

Judge Borchers interrupted by suggesting that the offending was “extremely serious,” a point that Dev Bhutani demurred to. Following submissions from Mr Bhutani that the “overall loss wasn’t that great” the following exchange occurred between Judge Borchers, Police Prosecutor Sergeant Lyons and Mr Bhutani.

Mr Lyons: The last time that Middle Earth [the restaurant] got their doors broken it was over $3000.

His Honour: Yes. Yes. Client coming up with the money, is he, Mr Bhutani?

Mr Bhutani: No, your Honour, as you’ve heard he already has a considerable amount of outstanding —

His Honour: Family going to pay the money, are they, Mr Bhutani?

Mr Bhutani: Not that I know of.

His Honour: Who is going to pay the money, Mr Bhutani?

Mr Bhutani: Your Honour, it’s a difficult situation. Unfortunately – – –

His Honour: No. No. Tell me, who do you think might pay the money, Mr Bhutani?

Mr Bhutani: It will unfortunately fall upon the ratepayers – the insurance payers here, the residents in Tennant Creek.

His Honour: Yes. Exactly.

Then followed an exchange between bench and bar about the child’s prior offending and court appearances and his attendance at school and whether anyone was providing parental control over the child, particularly around the time of the offending in May. Mr Bhutani sought to put the offending in context.

Mr Bhutani: If I might contextualise, the last few months in Mr …..’s life, your Honour, now your Honour’s probably aware of a death that took place in the Tennant Creek community that now really being investigated as a murder. That is …..’s mother and the primary suspect at this stage is his father, who is currently serving a significant time on remand at the Alice Springs Correctional Centre, being investigated for the death of his partner and ….’s mother.

Now that, your Honour, by all accounts, by all service providers here in the courtroom today, which I’m happy to call as well, has obviously taken a very significant toll on Mr …. . But, I think it’s really well reflected —

His Honour: Well, call them. I’d like to know how they relate that to breaking into people’s property including that. Call one of them, anyone you like and get that person to tell me how grief results in breaking into banks.

Mr Bhutani continued his submissions.

Mr Bhutani: If I might first, you Honour, tender – and I might finish my point, tendering the school attendance records from a period prior to April and a period later on … It really shows a very remarkable noticeable difference in attendance, 79 per cent down to 26 per cent. And, this is at a time after he’s lost his mother.

But, by all accounts, your Honour, that ongoing alcohol misuse and other issues in the family have really resulted in ….. being of quite low mood, suffering social anxiety. I’ve also got notes that he struggles to make and maintain long term friendships and really does take solace in the company of his two younger sisters, your Honour.

His Honour: Sorry, Say that again.

Mr Bhutani: That he really takes solace in the company of his two younger sisters.

His Honour: How old are they?

Mr Bhutani: Seven and eight?

His Honour: So, why wasn’t he with them at night?

Mr Bhutani: Sorry, 12 and 13 – – –

His Honour: Okay. So, if he’s so concerned about them, why is he out on the streets at 5am?

Mr Bhutani: They were residing at Ali Kurung (sic) at that time , your Honour

Then followed discussion about the child’s appointment—in mid-June 2017—with the Alice Springs-based clinical psychologist and his difficulty engaging with the Tennant Creek-based Youth Mental Health team, his school attendance record and submissions on how the matter might proceed.

His Honour: So, what should I do, Mr Bhutani?

Mr Bhutani: Well, we are in a difficult – – –

His Honour: So, do you want me to go back to the good behaviour bond and say, change it, so he only has to go to school when he wants to?

Mr Bhutani: No, your Honour. Well, it would have been ideal, your Honour, in circumstances like this, I think for a community work order – – –

His Honour: Rubbish. That wasn’t put to me and you know precisely why it wasn’t. Because, you and your colleagues have a mantra. And, the mantra is, he’s in the Youth Court. He’s too young to do that, he’s got to get a good behaviour bond and that’s what he got.

Mr Bhutani: Sorry. I’m suggesting that on this one. I’m suggesting that on this file.

His Honour: He’s not getting a good behaviour bond, Mr Bhutani. I’m thinking of goal, so you go prepare yourself by getting a pre-sentence report.

Mr Bhutani: Well, your Honour, I’m suggesting that would have been an ideal circumstance. Unfortunately, community work isn’t available. I didn’t say a good behaviour bond. I’m saying community work order. Unfortunately, it is not available for youths and so unfairly, what happens to youths in Tennant Creek Youth Justice Court is naturally, the sentencing imposition increases even though the history of the defendant and objective seriousness may not warrant that increase.

And, the focus of this court should remain that of rehabilitation and imprisonment whether suspended or not, your Honour, should remain an absolute last resort. In my submission, [the child] isn’t at that point of last resort, your Honour, particularly taking into account his personal circumstances; the presumable grief and trauma he’s going through. I can see no benefit to ….. firstly, but particularly to the community in sentencing him to a term of imprisonment.

The Police Prosecutor then made brief submissions, firstly advising the court that the date of the “actual serious offence” with [the child’s] parents had occurred on 20 January 2017.

Mr Lyons: Your Honour, what’s being forgotten in all of this is the victims in this matter, with the Middle Earth Cafe being targeted by probably every court session we have here, with youth. In Tennant Creek there’s always something involving the Middle Earth. It’s in the middle of town. It appears to be a target. Your Honour, the ANZ Bank, as your Honour has quite rightly said, they’re a business that can afford to replace their windows with insurances and what like. But, the victims in this matter are the Northern Territory Government, the ANZ Bank and Middle Earth. Due to the youth crime in this town, which is very prevalent and almost, as your Honour saw yesterday with the amount of youth files that were in the court, and youth were involved in another unlawful entry again last night in another business, which investigations are still going on with that.

That aside, the community in general has had enough of youth breaking into their businesses, breaking into houses and nothing happening.There’s no responsibility. They don’t take responsibility for their actions and consequently, the defendant before the court now is on a good behaviour bond. He was put on there about two months ago and can’t abide by any of the conditions that were put on there.

So, your Honour, detention would be beneficial for the young person, be it in Alice Springs or Darwin, where he can seek the help from the psychiatrists, or the psychologists that he is required to see.

His Honour Judge Borchers then asked the child to stand and addressed him.

His Honour: … You came before my court in March of this year, at which time you were about to be dealt with for a number of offences … You were given an opportunity. Given an opportunity which you signed and you agreed in court. You were legally represented. You had lawyers constantly representing you for a long period of time and you stood in court, and presumably they spoke to you and impressed upon you the importance of staying out of trouble.

There are people in court here, but there is no one exercising parental control over you. You’re rampaging around the streets at night and no one cares. I haven’t heard from the police that anyone rang the police, or contacted the police to say that you were missing after midnight, because no one cares.

[Mr Bhutani] says that I’m being unfair and I should contextualise the report and I will. I will contextualise the report in this sense: you’ve got no one looking after you. That’s why you don’t go to school. It might be somewhat stereotyping in a socioeconomic way. But, there’s no one providing you with an evening meal, tucking you into bed, getting you up in the morning, giving you breakfast and sending you off to school. And, if there is, you’re not listening to them.

The fact that you feel sorry about what’s happened in your family, how does that justify you damaging other people’s property? I’m told that you’re really concerned about your sisters. How does damaging other people’s property and possibly going into goal help your sisters? It doesn’t.

Now, I  accept, as I have said, that there’s been a bit of a breakdown in your family; a significant breakdown. But, you’ve dutchessed it. That means that you’ve taken advantage of it. You’re out and about on the streets with your mates, because no one is really in a position to look after you.

You’re not going back into the community. The community can’t afford you. It’s quite clear that you and your family are not going to pick up the damages for what you’ve caused. And, presumably, and I infer this, you’ve got no understanding of that. You don’t know what a first world economy is. You don’t know the difference between – you don’t know where money comes from other than the government gives it out.

People work. People make money. If they don’t make money, they starve, or they lose their businesses. And, there’s a very good chance that there will be businesses in this town that won’t continue after a number of years because of the number of times that they’ve been broken into. Because you’re not paying for it, your family’s not paying for it. You don’t even pay your fines. I’m remanding you in custody, in detention.

The child was remanded to the Alice Springs Youth Detention Centre and was due to appear before the court again on 13 July 2017. On Friday 16 June 2017 CAALAS made an application for bail before Judge Borchers on his behalf. That application was adjourned to Tuesday 20 June 2017.

On Saturday 17 June ABC Darwin reported the following comments from criminal barrister John Lawrence QC, a former president of the NT Bar Association who is representing several former juvenile detainees before the Royal Commission into the Protection and Detention of Children.

What this judicial officer did and said … completely undermines the integrity and the prestige and, indeed, the honour of the court in which he sits. For a judge to directly say that to a 13-year-old defendant in his circumstances is disgraceful. I don’t think any adult should speak to a child like that. This judicial officer, believe it or not, is doing this while a royal commission is hovering over this entire legal system. This has gone way beyond the pale, and I think it’s a matter that the royal commission will hear about.

The Sunday Territorian, following a page 7 piece entitled “Judge rants at teenage criminal” ran the following comments in an editorial.

It is difficult to convey just how upsetting comments made by Northern Territory Judge Greg Borchers to the 13-year-old sone of a murder victim were … Judge Borchers displayed no sympathy – or basic compassion – for a young child facing a heartbreak few will ever experience … Judge Borchers’ approach appeared to centre upon retribution, not rehabilitation, or both. That is in no one’s best interests. Frustration at youth offenders is understandable. But throwing the book at vulnerable kids and leaving them to rot in prison is not the only solution.