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Age of Criminal Liability (NSW)

The age of criminal liability is the minimum age at which a person can be charged with a criminal offence. In New South Wales, the age of criminal liability is 10. However, in recent years the state government has faced a lot of pressure to raise the age to 12, as is occurring in some other states and territories. This page deals with the age of criminal liability in New South Wales.

Children under 10

Under section 5 of the Children (criminal Proceedings) Act 1987, a child under 10 cannot be guilty of an offence.

If a child under 10 commits an act that would amount to a criminal offence if done by an older person, this will generally be dealt with by parents or teachers. The child may be referred to counselling to teach them appropriate behaviour and to address any underlying issues.

Children between 10 and 14

When a young person who is over the age of criminal liability but younger than 14 is charged with an offence, there is a presumption that applies known as doli incapax (incapable of evil). This is the presumption that a child under 14 is not capable of being guilty of an offence. The presumption can be rebutted with evidence that the child did, in fact, know that their actions were seriously wrong.

When a child under 14 is prosecuted with an offence, the prosecution must adduce evidence that the child knew the difference between right and wrong and understood that the act was seriously wrong as opposed to just ‘naughty’. If the evidence establishes that the child had the capacity to understand their actions, they can be found guilty and sentenced. If it does not, they must be acquitted.

Prosecution of young offenders

When a person under 18 is charged with an offence, they may be dealt with outside of the court system by way of a caution or another diversionary option where this is considered appropriate. If the matter is too serious to be dealt with through diversion, the young person will be charged and required to appear before the Children’s Court.

A young person may be summonsed to appear at court, arrested and then granted bail, or remanded in detention.

When a young person is found guilty of an offence in New South Wales, they may be sentenced to one or more of a range of penalties including a fine, a community corrections order, a community release order or a term of detention.

When a court sentences a young person, it applies different principles to when it is sentencing an adult. When the offender is a child, the paramount consideration is their rehabilitation into a productive and law-abiding citizen. However, this principle is also balanced with other sentencing principles such as the need to deter others from offending and the need to protect the community.

Raising the age of criminal liability

In recent years, there has been growing concern that the age of criminal liability in Australia is too low. The high rate of incarceration for children in Australia, particularly Indigenous children, and instances of human rights abuses in youth detention have led many to call for the age of criminal liability to be raised to 12 or 14.

In August 2023, the Northern Territory became the first Australian jurisdiction to raise the age of criminal liability from 10 to 12. Several other jurisdictions also now have plans to lift the age of criminal responsibility in the coming years or have given their ‘in principle’ support to doing so.

In 2021, Greens Senator David Shoebridge introduced a Bill into the Legislative Council seeking to raise the age of criminal liability in New South Wales to 14 and providing that children under 16 must not be detained or imprisoned for an offence. However, the Bill was not passed.

Many stakeholders continue to call for the age to be raised to 14 in New South Wales to better accommodate the needs of developing adolescents and the systemic disadvantages faced by the communities that young offenders usually come from.

Opponents of raising the age argue that young children commit serious offences and that the community needs to be protected from these offenders.

The age of criminal liability has been considered by a number of parliamentary and government inquiries as well as by Council of Attorneys-General meetings and working groups, but there is at present no plan to raise the age in New South Wales.

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

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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