Chapter 5Young offenders

In this chapter, you will look at how the law deals with young offenders. You will study the age of criminal responsibility and the rights of young people when dealing with the police. You will also look at the Children’s Court, penalties for young offenders and possible alternatives to court for young offenders.

• The law recognises a different level of responsibility and vulnerability for children and young people than it does for adult offenders.

• The juvenile justice system includes a mixture of the welfare model and the justice model.

• The system applies a higher level of protection and assistance for young offenders, but at the same time allows for serious sanctions where necessary.

Young offenders and the law

• Historically, children and young people who committed offences were treated largely the same as adult offenders.

• Children could be imprisoned, flogged, transported to colonies like Australia, or even executed.

Age of criminal responsibility

• Gradually, the common law developed a presumption that infants and very young children were incapable of forming the necessary criminal intent to commit a crime.

• This was known in the common law as the presumption of doli incapax.

Age of criminal responsibility

• By the late 20th Century, most jurisdictions had adopted a minimum age of criminal responsibility.

• Today, there is a conclusive presumption that children under 10 years old cannot commit an offence.

• For children and young people aged more than 10 years, the law differs.

• The following table highlights these differences.

Age of criminal responsibility

Age (inclusive) Criminal responsibility

0 – 9 years old Cannot be charged with a criminal offence. Children under 10 are not seen as mature enough to commit criminal offences.

10 – 13 years old Rebuttable presumption of doli incapax. Presumed not capable of committing an offence, but prosecution may show the child knew what they did was ‘seriously wrong’ and not just ‘naughty’.

14 – 15 years old Criminally responsible for any offence committed, but no conviction can be recorded unless it is a serious offence.

16 – 17 years old Criminally responsible for any offence committed and a conviction may be recorded, but the case will still be heard in the Children’s Court.

18 years or older Full adult criminal responsibility, with case to be heard in adult courts. If the offence was committed before the accused’s 18 th birthday, it can still be heard in Children’s Court until the accused turns 21.

• Many police powers apply to young people as they do for adults.

• However, the law recognises certain circumstances where children must be given greater protections in their dealing with police.

The rights of children and youngpeople when questioned or arrested

• Police can stop and require details of a person under 18 and suspected of carrying or consuming alcohol without reasonable excuse.

• If police question a child or young person, there must be another responsible adult present, otherwise the information may be inadmissible in court.

• Children, like adults, have a right to silence when being questioned by police.

• There are special requirements relating to police strip searches and young people.

Questioning of young people

• The conditions under which police can arrest a young person are as for adults, including the requirement to tell a person they are under arrest and why.

• Police must find out details of the young person’s parent or guardian as soon as possible and contact them.

Arrest and interrogation

• Children and young people must have a support person present during a police interview.

• Police must give the caution of rights in presence of the support person.

• Police must inform the suspect of their right to contact Legal Aid.

Arrest and interrogation

The Children’s Court is a specialised court established under the Children’s Court Act 1987 (NSW). It has a dual role:• dealing with criminal matters of children and young people under 18 years of age• dealing with matters of care and protection of children and young people referred to it by the Department of Community Services.

Children’s Court

The Children’s Court is required to have regard to particular principles, including:• children have rights equal to adults and have a right to be heard and participate in proceedings that affect them• children are responsible for their actions but require guidance and assistance• where possible, the education of a child should proceed without interruption• where possible, a child should be able to reside in his or her home.

Children’s Court

Some of the differences in Children’s Court proceedings compared to ordinary courts include:• matters are heard by a specifically trained magistrate

• proceedings are conducted in a closed court in order to protect the identity of the child

• media cannot publish any child’s name who is involved in the process, unless authorised by the court

• particular penalties and sentencing procedures apply

• child must be given the opportunity to participate and be heard

• court must ensure the child understands the proceedings.

Children’s Court proceedings

Children’s penalties differ from adult penalties, and there are more restrictions around when they can be imposed. Some of the lower-end penalties include:

• dismissal• conviction• adjournment• bond• youth justice conference• fine.

Penalties for children

Some of the more serious penalties include:

• probation• community service order• suspended control order• control order (custody in a juvenile justice centre).

Penalties for children

The Young Offenders Act 1997 (NSW) introduced diversionary measures for young offenders and police as an alternative to traditional criminal processes.

It allows for a three-tiered system to be applied for summary offences by young people, including:• warnings• cautions• youth justice conferences.

Alternatives to court

• The rate of detention for young offenders has decreased by over 50% since 1981.

• Yet in Australia, between 900–1000 young people are held in custody on an average day.

• Research suggest that custodial penalties ought to be used very sparingly with juvenile offenders.

• The Young Offenders Act has been particularly successful in diverting young people away from custodial sentences.

Effectiveness of the law foryoung offenders