Kids get off the hook a bit when it comes to law, and that’s where the age of criminal responsibility comes into play. This is the youngest age a person can cop the blame for their actions in court. It’s like drawing a line because they might not fully get what their actions mean or plan to be naughty on purpose.

In New South Wales (NSW), the age of criminal responsibility is a topic of significant interest for guardians and legal representatives who work with young people. Understanding how the law applies to different age groups is essential for ensuring that children receive appropriate support and guidance when they come into contact with the justice system.

Defining Criminal Responsibility

Criminal responsibility refers to an individual’s capacity to understand the nature and consequences of their actions and to be held legally accountable for any offences they commit. To be found guilty of a crime, a person must have both committed the physical act (actus reus) and had the necessary mental state (mens rea) at the time of the offence.

The Role of Age in Criminal Law

Age is a crucial factor in criminal law because it is recognised that children and young people undergo significant cognitive, emotional, and moral development as they grow. The legal system acknowledges that younger individuals may not fully comprehend the wrongfulness of their actions or the potential consequences, and therefore may not be held to the same standard of criminal responsibility as adults.

Current Age of Criminal Responsibility in NSW

In NSW, the current minimum age of criminal responsibility is 10 years old. This means that children under the age of 10 cannot be charged with a criminal offence, as they are considered “doli incapax” or incapable of forming the necessary intent to commit a crime.

The Minimum Age of 10

Under section 5 of the Children (Criminal Proceedings) Act 1987 (NSW), a child under the age of 10 cannot be guilty of an offence. This legislation recognises that very young children lack the capacity to understand the criminal nature of their actions and should not be subject to criminal proceedings.

Legal Treatment of Children Under 10

When a child under 10 engages in behaviour that would constitute a criminal offence if committed by an older person, the matter is typically handled through welfare and support services rather than the criminal justice system. This may involve intervention from parents, schools, or community services to address the child’s needs and prevent future incidents.

The Doli Incapax Presumption

In addition to the minimum age of criminal responsibility, the common law principle of “doli incapax” provides further protection for children aged 10 to 14. This presumption acknowledges the ongoing development of young people and their evolving capacity to understand the criminal nature of their actions.

Understanding Doli Incapax

Doli incapax is a rebuttable presumption that a child aged between 10 and 14 is “incapable of crime” or unable to form the necessary criminal intent. This presumption has its roots in English common law and has been adopted in various common law jurisdictions, including Australia. 

Our comprehensive article here covers the concept of doli incapax in detail. 

Application to Children Aged 10 to 14

For a child aged between 10 and 14 to be found guilty of a criminal offence, the prosecution must provide evidence to rebut the presumption of doli incapax. This means demonstrating beyond a reasonable doubt that the child understood the wrongfulness of their actions at the time of the alleged offence. Factors considered may include the child’s intellectual development, maturity, and the circumstances surrounding the incident.

Legal Processes for Young Offenders in NSW

When a young person aged 10 or above is accused of committing a criminal offence in NSW, their case is typically handled through the Children’s Court system, which operates separately from adult courts and focuses on the unique needs and circumstances of young offenders.

The Children’s Court

The Children’s Court of NSW has jurisdiction over criminal matters involving young people aged 10 to 17. The court aims to balance the need for accountability with the best interests of the child, focusing on rehabilitation and preventing future offending. Proceedings in the Children’s Court are less formal than in adult courts, and the identities of young offenders are protected.

Sentencing Principles for Young Offenders

When sentencing young offenders, the Children’s Court considers a range of factors, including the child’s age, maturity, family circumstances, and the nature of the offence. The primary focus is on rehabilitation and addressing the underlying causes of offending behaviour. Sentencing options may include cautions, youth justice conferences, probation, or, in more serious cases, detention in a youth justice centre.

General Considerations by the Court When Dealing with Young Offenders

Courts dealing with young offenders take into account various factors that acknowledge the unique developmental stages and circumstances of children and adolescents. These considerations aim to balance the need for accountability with the goal of promoting positive youth development and reducing the risk of future offending.

Rehabilitation as a Primary Focus

In the youth justice system, rehabilitation is a primary focus when dealing with young offenders. Courts recognise that young people have a greater capacity for change and are more responsive to interventions that address the underlying causes of their offending behaviour. Rehabilitation programs may include education, counselling, and skill development to help young offenders build positive life skills and avoid future criminal activity.

Balancing Accountability and Youth Development

While holding young offenders accountable for their actions is important, courts also consider the developmental stage and unique needs of each individual. Factors such as the child’s age, maturity, family background, and any history of trauma or disadvantage are taken into account when determining an appropriate response. The goal is to strike a balance between promoting accountability and supporting the young person’s positive development and reintegration into society.

Alternatives to Court Proceedings

In NSW, there are several alternatives to formal court proceedings for young offenders who have committed less serious offences. These diversionary options aim to address offending behaviour early and prevent young people from becoming entrenched in the criminal justice system.

Cautions and Warnings

For minor offences, police officers have the discretion to issue cautions or warnings to young offenders instead of initiating formal charges. A caution is a formal warning that aims to divert the young person from the criminal justice system while still holding them accountable for their actions. Cautions may be accompanied by conditions such as apologising to the victim or participating in a diversionary program.

Youth Justice Conferencing

Youth justice conferencing is a restorative justice approach that brings together the young offender, their family, the victim (if they choose to participate), and support persons to discuss the impact of the offence and develop a plan to address the harm caused. The conference aims to promote accountability, repair relationships, and support the young person to make positive changes in their life. If the young person successfully completes the outcome plan agreed upon during the conference, they will not face further criminal proceedings for that offence.

Need to Raise the Age of Criminal Liability: Discussing Future Directions

In recent years, there has been ongoing debate and discussion around potential reforms to the age of criminal responsibility in NSW and across Australia, among other youth detention reforms. While some advocate for raising the minimum age of criminal responsibility from 10 to 14, others argue for maintaining the current age of 10.

Arguments for Raising the Age

Those in favour of raising the age of criminal responsibility often point to research on child development and the potential negative impacts of early contact with the criminal justice system. They argue that children under 14 lack the maturity and cognitive capacity to fully understand the consequences of their actions and that a higher minimum age would allow for more appropriate health and welfare-related support interventions.

Arguments Against Changing the Current Age

Those who support maintaining the current age of criminal responsibility argue that it is necessary to hold young offenders accountable for serious crimes and that a higher minimum age could compromise community safety. They emphasise the importance of early intervention and the role of the criminal justice system in addressing offending behaviour.

Potential Future Developments

The debate around the age of criminal responsibility is ongoing, and there have been various proposals and discussions at both state and national levels. In 2020, the Council of Attorneys-General (CAG) in Australia considered raising the minimum age to 14 but did not reach a consensus. In 2023, some states, such as the Australian Capital Territory, have committed to raising the age of criminal responsibility to 14 years old, while others continue to review their policies and consider potential reforms.

Conclusion

Understanding the age of criminal responsibility and its application in NSW is crucial for guardians and legal representatives working with young people who may come into contact with the criminal justice system. The current minimum age of 10, combined with the doli incapax presumption for children aged 10 to 14, reflects the legal system’s recognition of the developing capacities of young people and the need for age-appropriate responses to offending behaviour.

The Children’s Court system and the focus on rehabilitation and diversion for young offenders demonstrate a commitment to addressing the unique needs and circumstances of children and adolescents who come into conflict with the law. As the debate around potential reforms to the age of criminal responsibility continues, it is important for those involved in youth justice to stay informed about developments and to advocate for evidence-based approaches that prioritise the best interests of young people while also ensuring community safety.

Don’t leave your legal matters to chance. Contact our firm today.

Frequently Asked Questions