Defence of Immature Age

The age of criminal liability is the age when a person can be arrested, charged and found guilty of criminal offences. The age of criminal liability is 10 in all states and territories of Australia and under Commonwealth law. When a child under 14 is charged with a criminal offence, they may rely on immature age to defeat the charge. Immature age is not technically a defence; rather, when prosecuting a young person under 14, the Crown must prove that the child was sufficiently mature to understand that their actions were wrong. If this cannot be established, the child must be found not guilty.

Legislation

In Victoria, the age of criminal liability is set out in section 344 of the Children, Youth and Families Act).

In New South Wales, the age of criminal liability is stated in section 5 of the Children (Criminal Proceedings) Act 1987.

In Queensland, the age of criminal liability is set out in section 29 of the Criminal Code 1899.

In the ACT, section 25 of the Criminal Code 2002 sets the age of criminal responsibility at 10.

In Western Australia, the age of criminal liability is set out in section 9 of the Criminal Code Act Compilation Act 1913.

Immature age and children under 10

A child under 10 cannot be arrested or charged with a criminal offence. The rationale behind this is that children of such young age are not mature enough to be held criminally accountable for their actions.

However, if a child under 10 engages in behaviour that would be an offence if done by an adult, there may be other consequences. These include the child being punished by their parents or teachers, Child Protection being notified, and counselling being provided to the child.

Immature age and children between 10 and 14

A child between 10 and 14 may face criminal charges. However, for a child under 14 to be found guilty of an offence, the prosecution must demonstrate to the court that the child understood that their actions were wrong.

Failure to prove this beyond a reasonable doubt will result in the child’s acquittal on the grounds of immature age. This principle is called the doli incapax rule, which presumes that children below 14 years old are not old enough to be held criminally responsible. This presumption can be overcome with evidence to the contrary.

Children over 14

If a child aged between 14 and 18 is charged with a summary offence, the prosecution is not required to prove that the young person knew their actions were wrong. They are only required to prove the accused guilty beyond a reasonable doubt. 

Young offenders are subject to the same procedures and rules of evidence as adults, but there are additional rules that apply to them. The primary objective of any sentence imposed on a young person under the law is their rehabilitation. The court may impose various orders, such as a fine, a good behaviour bond or a term of detention. The court may also defer sentencing to allow the child to participate in a group conference or a diversionary program.

Criminal matters where the accused is under 18 heard by the Children’s Court. If the charge is an indictable offence, it will go through a committal hearing and then be committed to the County Court, District Court or Supreme Court if there is sufficient evidence.

Arguments for raising the age of criminal liability

Australia’s age of criminal liability is much lower than the global average of 14, and many professionals and members of the community believe it should be raised to at least 12.

In recent years, the detention and criminalization of young people have sparked public outrage. It is thought that early criminalization can lead to further offending and increase the likelihood of these young people being dealt with by the criminal justice system again as adults. The majority of young people charged with offences and sentenced to detention come from low socio-economic backgrounds, with Indigenous children being the most overrepresented. Advocates for raising the age argue that a low age of criminal liability reinforces the marginalization of underprivileged youth and perpetuates disadvantage in these communities. Children who are involved in criminal proceedings are less likely to complete their education and secure employment.

Medical research indicates that children under 12 have limited capacity for reflection. The UN Committee on the Rights of the Child advocates that all countries work towards establishing a minimum age of criminal liability of no less than 14.

Arguments for keeping the current age of criminal liability

Supporters of the current age of criminal liability maintain that young people are capable of committing serious criminal offences and should be appropriately punished. They also argue that the doli incapax rule provides a safeguard for children who are not mature enough to be held accountable in court, and who can secure an acquittal based on immature age, making an increase in the age of criminal liability unnecessary.

If you require legal advice or representation in a criminal matter or in any other legal matter, please contact Armstrong Legal.