The Age of Criminal Liability (Vic)

The age of criminal liability or the age of criminal responsibility is the age at which a person can be arrested, charged and found guilty of criminal offences. In Victoria, the age of criminal liability is 10, which is the same as in other states and territories. It is also the same for Commonwealth offences. 

In Australia, the age of criminal liability is quite a bit lower than the international average of 14 and many youth justice professionals believe it should be raised to at least 12.

Children under 10

Children younger than 10 cannot be arrested, charged, summonsed, or found guilty of offences. This is set out in section 344 of the Children, Youth and Families Act). This rules exists is because children under the age of criminal liability are seen as too young to be held criminally responsible for their actions.

If a child under 10 does something that would be an offence if committed by an older person – for example, assault or theft – there are various consequences that may flow from this. 

These consequences include:

• The child being punished by parents or teachers;
• A notification being made to Child Protection;
• The child receiving counselling.

Children between 10 and 14

Children between 10 and 14 can be charged with offences but the prosecution must show the court that the child understood the act constituted a crime and that their actions were wrong. If prosecution cannot establish this beyond a reasonable doubt, the child will be acquitted on the basis of immature age. This is known as the doli incapax rule. The rule amounts to a rebuttable presumption that a child younger than 14 is not criminally responsible.

Children over 14

When a person aged between 14 and 18 is charged with a summary offence, there is no requirement that the child be proven to have known that their actions were wrong. The matter will be dealt with in the Children’s Court. If the offence is an indictable offence that is to be heard on indictment, it will be mentioned in the Children’s Court, then proceed to a committal hearing. If there is sufficient evidence to support the charge, the matter will then be committed to the County Court or Supreme Court. 

Young people are subject to the same procedures and rules of evidence as adults. There are also some additional rules that apply to young offenders.

A young person who is found guilty of an offence in Victoria is sentenced under the Children, Youth and Families Act 2005. The primary goal of any sentence imposed on a young person under that act is the young person’s rehabilitation.

The court can sentence a young person to a range of orders, including a fine, a good behaviour bond, a youth supervision order or a term of detention. The court can also defer sentencing to allow the young person to participate in a group conference or a diversionary program.

Arguments for raising the age of criminal liability

The criminalisation and detention of young people has led to public outrage in recent years. Criminalisation at an early age is believed to lead to further offending and to increase the likelihood of the person being dealt with by the criminal justice system as an adult.

The young people who are charged with offences and those who are sentenced to detention are overwhelmingly from low socio-economic groups, with Indigenous children massively over-represented. Advocates of raising the age argue that a low age of criminal liability further marginalises underprivileged young people and entrenches disadvantage in these communities. Children who are involved in criminal proceedings are less likely to complete their education and find work.

Children’s brains are still developing and medical research shows that children under 12 have limited capacity for reflection.

The UN Committee on the Rights of the Child advocates all countries working towards a minimum age of criminal liability of no lower than 14.

Arguments for keeping the current age of criminal liability

Supporters of the current age argue that young people commit serious criminal offences and should be adequately punished.

Supporters of the current age also argue that the doli incapax rule already provides a safeguard for children who are not sufficiently mature to be held accountable for their actions by a court and that raising the age is unnecessary.

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