Can children be charged with crimes?

We all know that teenagers, and even children, can commit crimes – but what happens when they do? 

It’s not uncommon to hear myths or misconceptions surrounding children and crimes. From time to time we hear about children being tried as adults in the United States, stories about riots in juvenile detention centres or myths that any child who commits a crime is entitled to a warning from police or won’t have a conviction recorded. 

In NSW, anyone under the age of 18 years of age is considered to be a child in the eyes of the law. If a person is charged with a crime and was under the age of 18 at the time the crime is alleged to have been committed they will be dealt with as a child – even if they turn 18 midway through the matter. Children are dealt with differently to adults, and different legislation applies. Matters will start in the Children’s Court. Serious crimes may be finalised in the District Court, in some cases before a jury. However, it is not the case that the child is treated or tried as an adult. The legislation that applies to all Children still applies in the District Court. The court will be closed to the public, the child’s name, and identifying information suppressed and, if the child is found guilty, the same penalties apply.

While anyone under the age of 18 is considered to be a child, not a child can only be charged with a criminal offence if they are above the age of criminal responsibility. In NSW, this is presently10 years of age. Any child under ten years of age cannot be charged as the relevant legislation states “It shall be conclusively presumed that no child who is under the age of 10 years can be guilty of an offence.” 

To further complicate matters, a child between 10 and 14 years of age can be charged, but can only be found guilty if the prosecution can prove, beyond reasonable doubt, that the child has sufficient capacity to be found criminally responsible for the crime. This is known as ‘doli incapax’ and is a rebuttable presumption that a child between the ages of 10 and 14 lacks the relevant capacity to be held criminally responsible. In other words, the law presumes that until a child turns 14, they don’t have the relevant capacity to form a guilty mind and therefore cannot be found guilty of a crime. 

In some cases, a child aged between 10 and 14 will be charged by police with a crime. This usually only happens in relation to serious allegations, or where there is an extensive history of crime or crime-related activity by the child. Once the child is charged, the prosecution needs to rely on psychiatric and other evidence to satisfy the court that the child did the act charged and, when doing the act, knew it was wrong (rather than merely naughty or mischievous).

Where a child pleads guilty or is found guilty of a criminal offence, they will be sentenced. The court has significant discretion on sentence, ranging from dismissing the matter, cautioning the child, release the child on probation or, in the most severe cases, sentence the child to a control order which requires their detention in a juvenile detention centre. Where the child is under 16 years of age, a criminal conviction cannot be recorded. It will, however, always remain on the court record. A child between 16 and 18 may have a conviction recorded against them, however, depending on the charge, the conviction may only remain on their disclosable criminal record for a certain period of time before it becomes a spent conviction.

Author: Trudie Cameron

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