Young Offenders

Young Offenders

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​ Discuss the issues surrounding the age of criminal responsibility and explain why young offenders are treated are differently in the criminal justice system

​Why treat children differently?

​“No civilised society regards children as accountable for their actions to the same extent as adults ... The wisdom of protecting young children against the full rigour of the law is beyond argument. The difficulty lies in determining when and under what circumstances should it be removed.”

​

​Professor Colin Howard in his book ‘Criminal Law’

​Doli Incapax- incapable of committing an ‘evil act’

• ​responsibilities

• ​developmental differences

• ​culpability

• ​mens rea

Multiple Choice

What is mens rea?

• A guilty act

• A guilty mind

Multiple Choice

What does 'doli incapax' mean?

• incapable of committing an ‘evil act’

• capable of committing an ‘evil act’

• cannot be found guilty of a crime

• young offender

​How does the law treat young offenders?

​s 7.1 of the Commonwealth Criminal Code, and. New South Wales section 5 of the Children (Criminal Proceedings) Act 1987:

“A child under 10 years old is not criminally responsible for an offence.”

How does the law treat young offenders?

​‘irrebuttable presumption of doli incapax’.

​

​too young to truly understand right from wrong

​

​However, s 7.2 of the Criminal Code also reads:

 

“(1) A child aged 10 years or more but under 14 years old can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.

(2) The question whether a child knows that his or her conduct is wrong is one of fact. The burden of proving this is on the prosecution.”

​How does the law treat young offenders?

​‘rebuttable presumption of doli incapax'

​

​

​This means that the prosecution, in addition to proving the elements of the offence, (that the child committed the actus reus, e.g. hit another child; that the child had the mens rea, e.g. they intended to hit the other child), must also prove that the child knew that what he or she did was seriously wrong in the criminal sense.

​How does a court decide if a child knew what they were doing was wrong?

​1.     The prosecution must rebut the presumption of doli incapax as an element of the prosecution case.

​This means that the prosecution needs to produce evidence to show that the accused knew that what they were doing was wrong. As the judge in R v LMW (1999) stated, there just needs to be enough evidence that the jury could find that the accused knew that what he was doing was wrong. In this case, which involved the accused pushed his cousin into the Georges River, where he drowned.

​How does a court decide if a child knew what they were doing was wrong?

​2.     The child knew the act was seriously wrong as opposed to naughty

​In R v CRH (1996), Justice Salter told the jury that “the prosecution must show that the act was ‘seriously wrong’ and not just something that would invite parental disapproval.”

​How does a court decide if a child knew what they were doing was wrong?

​3.     The evidence relied upon by the prosecution must be strong and clear beyond all doubt or contradiction.

​The reason for this part of the test is to protect children who have done something they think is merely naughty from being convicted of a criminal offence. An example of evidence that may not be strong enough to prove beyond doubt that the accused knew what they were doing was seriously wrong comes from the case C v DPP (1996).

​How does a court decide if a child knew what they were doing was wrong?

​3.     The evidence relied upon by the prosecution must be strong and clear beyond all doubt or contradiction.

C v DPP (1996).

The appellant was aged 12 and was seen by police officers using a crowbar to tamper with a motorbike in a private driveway. Appellant ran away but was caught and arrested. Initially convicted. The Magistrate inferred from the fact that he ran away that he knew what he had done was wrong.

​How does a court decide if a child knew what they were doing was wrong?

​1.     The prosecution must rebut the presumption of doli incapax as an element of the prosecution case.

​How does a court decide if a child knew what they were doing was wrong?

​1.     The prosecution must rebut the presumption of doli incapax as an element of the prosecution case.