Download Young Offenders

Young Offenders
Issues Surrounding the Age of Criminal
Responsibility
 Why differentiate between children and adults?
Children are vulnerable
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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
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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
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 !!!!!!