Young Offenders Flashcards
What is doli incapax?
A Latin term meaning ‘incapable of wrong’
Refers to the presumption that children under a certain age cannot be held legally responsible for their actions and so cannot be guilty of an offence
The United Nations Convention on the Rights of the Child (1989) recognised the principle and urged all countries to establish an age of criminal responsibility
In Australia, what happens to children under 10 who commit a crime?
The Children (Criminal Proceedings) Act 1987 (NSW) lays out the minimum age of criminal responsibility - 10 years of age
For children below 10, doli incapax is a conclusive presumption - final not rebuttable
Children under 10 draw on very limited life experience when making moral decisions
In Australia, what is the situation for children aged between 10-13 who commit a crime?
There is a rebuttable assumption of doli incapax
The child is still presumed incapable of committing the offence, but this presumption is allowed to be rebutted
In order to prove that the child knew the consequences of their actions, the prosecution may rely on psychiatric evidence or witnesses such as parents/teachers
Consider case R V LMW (1999) - 10 year old brought to Supreme Court on charges of manslaughter, acquitted by jury
What are the rights of young people when being questioned/searched?
When facing police questioning, young people are entitled to have a responsible adult other than the police officer present
Police search powers for children are largely the same as adults, with the exception of strip searches; they cannot be performed on a child under 10 and those under 18 are entitled to having a responsible adult present
NSW police data obtained by the Redfern Legal Centre showed almost 300 children were strip-searched between 2016-2018, the youngest being 10 years of age
What are the rights of young people when being arrested/interrogated?
In 1997, the ALRC conducted a joint enquiry with the Human Rights and Equal Opportunity Commission, titled Seen & Heard which recommended that upon arrest a young person’s guardians should be notified as soon as possible
Young people must have a responsible adult present at the police interview
They will receive the same caution and detention hours as an adult
In the case of R v Cortez (2002), the Supreme Court of NSW ruled that young people must be informed that legal aid advice is available over the phone and that young people must have the opportunity to ring it
What is the role of the children’s court?
The Children’s Court was established under the Children’s Court Act 1987 (NSW)
Deals with the criminal matters of children under 18 years of age, and the care & protection of young people referred to it by Dep. of Family & Community Services
In the closed court, matters are presided over by a specially trained magistrate
In 2019, of the 7515 young people who appeared before a NSW criminal court, less than one percent were sentenced to detention
What is the primary purpose of the sentencing of children - include example
In the children’s court, the purpose of rehabilitation is given primary weight
In the case of R v GDP (1991), the 14 year old offender had no criminal record but committed serious criminal damage in excess of $550,000 and was sentenced to a 12 month custodial sentence
Court of Criminal Appeal replaced this sentence with a 12-month probation order, stating that rehabilitation should be the primary aim and that a custodial sentence would have been damaging to a boy commencing Year 12 and facing his HSC
Between 2014-2019, there was a 21.8% rise in the number of youth kept on remand
What are alternatives to court for youth?
The Young Offenders Act 1997 (NSW) provides the main alternative program for young offenders
Designed to encourage rehabilitation, reduce recidivism and reduce court pressures, the act established a three tier system for summary offences
Warnings - a notice given to a young offender that is recorded by police but with no conditions attached
Cautions - a formal, recorded alternative to prosecution where the offender admits to the offence and receives a formal police caution
Youth Justice Conferences - allows the offender to take responsibility for their actions & provides them with support services to overcome difficulties
A 2013 BOCSAR report found that the act had reduced custodial orders by 17%
