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Young Offenders Issues Surrounding the Age of Criminal Responsibility Why differentiate between children and adults? Children are vulnerable - Protection from the consequences of uninformed decisions Prevent exploitation of young people Recognition that children are generally less responsible than adults for their actions The Common Law response - Formulated the principle of doli incapax which stated that children are presumed to be incapable of having a criminal intent What is a Child? A child below the age of 10 (ie until the child’s 10th birthdday) cannot be charged with a criminal offence. Children (Criminal Proceedings) Act 1987 NSW (“the Children’s Act”) A child between 10 – 14 years of age enjoys a rebuttable presumption of criminal incapacity. R v LMW  NSWSC 1343 A child 14 – 17 years is not subject to the principle of doli incapax. The Children’s Act includes a number of important protections including the prohibition of publishing a child’s name, matters to be heard in the (closed) Children’s Court, etc Children’s Rights/Responsibilites Child has a responsibility to identify themselves Child has a right to silence Child has a right to receive support from an adult in order for any statement to be prima facie admissible No strip searches of children less than 10 years and for children between 10 & 18 years there must be a suitable supportive adult present Arrest / Interrogation of Children Children have a right to silence Children have a right to be cautioned. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Children have the right to an Interview Friend to be present during a police interview. Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW) Fingerprints/photographs for children below the age of 14 can only be taken with the consent of the Children’s Court DNA samples of children below 18 can only be obtained with the consent of the Children’s Court Penalties/Options for Children Warning Bond Caution (formalised and Fine always written) Fine Youth Justice Conference Dismissal Conviction Probation Community Service Order Suspended control order Control Order Children’s Sentencing Considerations Rehabilitation of offenders is the focus of sentencing NOT deterrence or retribution or societal protection. R v GDP (1991) 53 A Criminal R 112 However, if a young offender engages in repeated offences and/or grave adult behaviour then the rehabilitation principle may not be applied. R v Pham & Ly (1991) 55 A Crim R 128 Is the Criminal Justice System Effective in dealing with Young Offenders? Discussion !!!!!!