Chapter 5
Young 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.
Young offenders and the law
• 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.
Age of criminal responsibility
• 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 (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 18th birthday, it can
still be heard in Children’s Court until the accused turns 21.
The rights of children and young
people when questioned or arrested
• 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.
Questioning of young people
• 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.
Arrest and interrogation
• 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.
Children’s Court
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 proceedings
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.
Penalties for children
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).
Alternatives to court
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.
Effectiveness of the law for
young offenders
• 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.