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Young Offenders
Issues Surrounding the Age of Criminal
 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 [1999]
NSWSC 1343
 A child 14 – 17 years is not subject to the principle of doli
 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
 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 !!!!!!