Police investigations are still underway, but it has been alleged by Police that the boys were engaged in a pre-arranged fight when the tragedy happened. There were also several young witnesses. The stabbed boy was taken to hospital but died a short time later.

The 13-year old who has been charged was granted conditional bail in the Children’s Court.

He must spend each night at his family home, not leave the home without a parent or carer, and must not enter the Central Coast (where the stabbing occurred) for any reason other than attending court. He must not go near, nor try to contact, any member of the victim’s family. He is also banned from accessing any form of social media. These are not unusual bail conditions for a young offender who is alleged to have committed such a serious crime.

In the space of a few hours on the evening of the 11th January, the lives of many people have been changed forever.

Age of culpability

In Australia, under the law, Children over 10 years of age can be charged and held responsible for committing a criminal offence. This is called the ‘age of culpability’.

There is a provision within the law which applies to children over the age of 10, but under the age of 14, which means that in such cases, the prosecution must prove beyond reasonable doubt that the child did commit the crime and also that the child knew it was wrong to commit the crime.

There have long been calls to raise the age of culpability, for a variety of reasons. Last year the Australian Capital Territory mooted that it would raise the age to 14 years within its jurisdiction. There are also wider discussions underway to raise the age to at least 12 years old to ensure consistency across the nation, but no decision has been made yet.

The Children’s Court

The Children’s Court deals with almost all matters relating to children and teenagers (under the age of 18 years). The Children’s Court has the responsibility to ensure that a child understands their actions and takes responsibility for their crime, balanced with the effect on victims.

The court also considers factors such as a child’s state of dependency and immaturity and the fact that they require guidance and assistance.

Children have the right to participate and children can be sentenced to the same penalties as adults who commit the same offence. However, the Children’s Court also recognises that young offenders do have high potential for rehabilitation, and to that end, it has a range of sentencing options it can apply, which take into account family and community ties and well as the importance of access to continuing education, and social reintegration strategies that are not necessarily as severe as juvenile detention.

However, typically, if the charge is serious – such as murder – then the penalty imposed by the court will also reflect the seriousness of the crime.

One of the significant differences in the treatment of a child or teenager who has been charged with an offence and is going through the justice process, is that the courts will to keep children at home, or in the home of a carer (rather than be in detention). The Court will also often suppress details and limit the information available to the public, via media for example, to protect the identity of the young person and their family, as well as the victims of crime.

The charge of Murder

Murder is one of two homicide offences in New South Wales – murder and manslaughter. Murder is the more serious charge.

The maximum penalty for murder is 25 years imprisonment.

This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.

We service NSW, but specifically the area from Coffs Harbour to Byron Bay, Ballina, Mullumbimby and Tweed Heads regions on the Far North NSW Coast.

To learn more about The Local Court Lawyers, see our What We Do page.

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Last week Greens Member of the Legislative Council (MLC)  David Shoebridge went one step further. He introduced a bill to NSW Parliament which proposes lifting the age of criminal responsibility to 14 years as well as requiring alternatives to prison for offenders under 16 years of age.

Children as young as 10 can be prosecuted and imprisoned

Currently in New South Wales, children as young as 10 years old can be held accountable for some crimes they commit, then prosecuted and imprisoned. Having said that, there is legal doctrine, case law and legislation that reduces the culpability of children between 10 -14, and affects the types of sentences they face (the penalties, bonds, detention etc), but criminal culpability of juveniles (and how it applies to young offenders) requires specific situational advice.  Earlier this year the ACT paved the way to become the first jurisdiction in Australia to raise the age of criminal responsibility to 14 years, which is the standard recommended by the United Nations.

Setting criminal culpability at the age of 10 actually violates their human rights under the Convention of the Rights of the Child. Human rights, civil liberties and child protection advocates have long lobbied the Australian federal and state governments for change, with no success.

Why we shouldn’t lock children up

There is a growing body of research which shows that when children and young teens have early contact with the criminal justice system, it often severely affects their future, essentially setting them up for a life of continued offending, spending time in and out of jail.

Other research shows that young people don’t have fully developed cognitive functions, including judgement and impulse control, which impacts the decisions they make, and means they don’t always understand the risks they take, nor are they able to fully assess the consequences of their actions, prior to acting.

The majority of children and young people who commit serious violent crimes have suffered significant trauma themselves and need the right kind of help, so they can heal.

Last year almost 500 children aged between 10 and 13 were sent to jail across Australia, and it is often the most vulnerable and disadvantaged children who come into contact with the justice system at a young age. About two thirds of them are Aboriginal or Torres Strait Islanders, despite Indigenous people making up only three per cent of Australia’s total national population.

Psychologists say that children and teens do have good chances of turning their lives around if they are dealt with with a combination of appropriate punishment, rehabilitation. and support.

Of course, if the law is passed, then the NSW Government will need to ensure that there are sufficient and appropriate alternatives to detention or jail for these young people. There are already a variety of treatment programmes which will need more funding to enable access for a greater number of participants.

The Children’s Court

Offenders younger than the age of 18 are dealt with in the Children’s Court.

The Children’s Court already has the power to deal with juvenile criminal matters in a way that is appropriate to the age of the child and the objective seriousness of the offence. The Children’s Court takes into consideration a range of factors in sentencing, including contributing factors, mental health, the severity of the crime, previous criminal acts, and the child’s home situation and family. The children’s Court can impose a range of sentencing options such as additional warnings, good behaviour bonds, fines, community-based orders or a custodial sentence.

While Federal and State governments have traditionally refused to consider raising the age of criminal responsibility, this is a positive step forward, and with the ACT already making progress, there is little excuse for the other states and territories not to follow suit.

This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us. 

We service NSW, but specifically the area from Coffs Harbour to Byron Bay, Ballina and Tweed Heads regions on the Far North NSW Coast.

To learn more about The Local Court Lawyers, see our What We Do page.

The post Children as young as 10 can be held criminally responsible. Is that too young? appeared first on Local Court Lawyers.