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29 Jul 2020

HHG Legal Group’s Family & De Facto team’s Executive Chairman, Simon Creek and Criminal Law team’s Senior Associate Siobhan Nims provide a summary of the key facts to assist in starting the conversation around the contentious issue of age of criminality and youth incarceration. 

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The discussion around youth incarceration has been brought back to the surface around Australia in recent weeks. Advocates have been lobbying Australian federal and state governments to raise the minimum age of criminal responsibility.

 

WHAT IS THE ‘AGE OF CRIMINAL RESPONSIBILITY’?

In Western Australia, a child may be held criminally responsible from the age of ten. An alleged offender, ten years of age or above, can be charged by the police and convicted in court. However, between the ages of 10-14 years old, it must also be proven that the child has capacity to understand not only that the act/omission was one they ought not to do or make, but that it was so seriously wrong that it was criminally wrong.  Where a child is between the ages of 10-14, the police must prove, as an element of the offence charged, that the child had that capacity using evidence such as medical records, school reports, DCP documents or any police interviews with the child. 

If an alleged offender is 18 years old and breaks the law, the police must charge the person through the adult justice system. For a younger person, police may issue a caution. They can also refer (divert) the child to Juvenile Justice Team (JJT), once the child is charged with a criminal offence.

However, police cannot give cautions and refer a juvenile offender to the JJT in respect of certain prescribed Schedule 1 or 2 offences, such as sexual offences, catastrophic offences such as murder and manslaughter, and other offences including assault occasioning bodily harm and grievous bodily harm charges. There is a long list and this is nowhere near exhaustive. More serious charges can be dealt with through the Children’s Court “Court Conferencing” program or through a process that more closely resembles the adult process through the criminal justice system.

Generally if the police charge an individual with a criminal offence while the person is under 18 years old, the charge will be dealt with in the Children’s Court. Where adults have juvenile charges however, from an earlier period of time, those charges may be dealt with by the Magistrates Court or superior adult courts depending on the circumstances, e.g. what other charges they have, the type of charges and whether they have adult co-offenders, for example.

AUSTRALIAN CHILD INCARCERATION STATISTICS

  • There were almost 600 children aged 10 to 13 in detention in Australia last financial year 3.
  • In the June Quarter of 2019 across Australia 2 :
    • 949 young people were in detention on an average night.
    • 90% of them were male
    • 83% of young people were aged 10-17 (the remainder being 18-20)
    • 63% were unsentenced; and
    • 53% were Aboriginal or Torres Strait Islander
  • In Western Australia on an average night in the June quarter 2019:
    • The rate of young Indigenous Australians aged 10–17 in detention in WA was 57 per 10,000.
    • The non-Indigenous rate was 1.2 per 10,000.
  • From June 2015-2019, the Northern Territory consistently had the highest rate of young people in detention on an average night each quarter (11–22 per 10,000 aged 10–17).

WHY ARE ADVOCATES CAMPAIGNING TO RAISE THE AGE?

In 2019, the United Nations Committee on the Rights of the Child recommended 14 years as the minimum age of criminal responsibility.

Child development studies have found that children under 14 often lack impulse control, and have poorly developed capacity to understand consequences. The earlier a child enters the justice system, the more likely they are to have repeat interactions with it. 

Social, community and family factors such as poverty, neglect, domestic violence or disability also have a large impact on incarceration rates. A 2018 study found nine out of ten young people in Western Australian youth detention were severely impaired in at least one area of brain function.

There is also the issue of the high rate of incarceration of Indigenous youth. Just over half of all Australian children imprisoned on any given night are Indigenous. 

In WA, the Banksia Hill Detention Centre is the state’s only juvenile detention facility. The facility houses both boys and girls from 10-18 years old from all over the state, meaning offenders from regional areas are even more isolated from their families and communities. There has been a history of incidents at this facility and a large number of young people there have reported feeling unsafe. A 2017 report4 found that education services delivered at Banksia Hill did not meet community standards. Young people in custody should receive a comparative standard of education to all in the education system, and in many cases, inmates require higher educational needs.

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Source: WA Today – Petty crimes, private jets and prison: How the WA government wastes millions punishing regional kids1

WHAT CHANGES HAVE BEEN RECOMMENDED TO REDUCE THE RATES OF YOUTH INCARCERATION?

  • Increased funding for the Department of Child Protection (DCP) to enable them to provide more support services for families before they go into poverty & to prevent their children offending. 
  • An increased incentive for police officers to engage the JJT before charging persons under 18 for criminal offences. 
  • Increased promotion and funding for the Remote School Attendance Strategy (RSAS), WA Police and Community Youth Centres (PCYC) or other organisations who seek to create safe spaces for disadvantaged youth or provide basic essentials such as food, water, education or recreational activities. 

WANT TO KEEP READING?

There are a number of useful resources and articles on this topic if you are interested in further reading: 

HOW HHG LEGAL GROUP CAN ASSIST

For over 100 years HHG Legal Group has been proudly serving Western Australian families, business and individuals. If you require assistance in relation to criminal law, traffic law, regulatory matters, restraining orders, or care and protection (DCP) matters, please contact us via our online form or call us on 1800 609 945. We have offices in Perth, Mandurah, Joondalup and Albany, and experience representing and advising clients throughout regional and remote areas in WA.

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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