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Why we should not rush to raise the age of criminal responsibility in Australia

This article is by Bond University Associate Professor Criminal Justice and Criminology Terry Goldsworthy and was originally published on The Conversation.

The “raise the age” campaign seeks to raise the age of criminal responsibility in Australia so that a person under the age of 14 years isn’t criminally responsible for any act or omission they commit.

Such a move has been mirrored by proposed legislative bills in various states.

But is raising the age of criminal responsibility justified, and what are the implications if we do?

The current state of legislation in Australia

Currently in Australia, the Commonwealth and all states and territories set the minimum age of criminal responsibility at ten.

Separate to this, the “doli incapax” presumption is available in all states and territories. This means a child aged 10-13 isn’t criminally responsible for any offence, unless it can be shown the child had the capacity to know they ought not to commit the offence. This places the onus of proof with the prosecution. So if they charge a 12-year-old, they need to show the child knew their actions were seriously wrong, rather than just naughty or mischievous.

There has been some criticism of this presumption – that it’s complex and places a high demand on resources. Despite this, case law is clear on how it should be interpreted. In terms of resource demand, that does not indicate the presumption does not work, it merely points to a separate issue in the operation of the courts.

At a November 2021 meeting, state attorneys-general from around Australia supported the development of a proposal to increase the minimum age of criminal responsibility from ten to 12. But this hasn’t yet been enacted anywhere.

Bills have been introduced in the New South Wales and Queensland parliaments to raise the age of responsibility to 14, but these were not supported.

Generally the arguments to support raising the age are grounded in not having young children in custody. But incarceration of youth offenders is a sentencing outcome – it’s a separate issue from whether the child is aware that what they did is wrong and as such, is criminally responsible.

The raise the age campaign states:

It’s time for the federal, state and territory governments to do what’s right and change the laws to raise the age, so children aged ten to 13 years are not sent to prison.

But what is the reality of children in detention in Australia?

Since 2010, the number of custodial sentences issued by Children’s Courts have declined markedly.

2021 Census data indicates there are 1,588,051 children aged 10-14 in Australia. In 2020-21, the Australian Institute of Health and Welfare reported there were 444 children aged 10-13 in detention (this includes unsentenced and sentenced detention) for the year. This was down from 499 in 2019-20.

Data from the Queensland Police Service indicated the average daily number of children aged 10-13 in police watch-houses was nine in 2019, and five both in 2020 and 2021.

The Australian Bureau of Statistics reported that children aged 10-14 accounted for 16% of Children Court matters finalised with a guilty outcome in 2020-21. Of those defendants, 95% received a non-custodial sentence, meaning they weren’t imprisoned. Only 73 defendants, or 2%, received a custodial sentence, whereby they were sent to a correctional institution such as a prison or youth detention centre.

Victorian Sentencing Council data indicates that custodial sentences for youth offenders were at their lowest level since 2004-05, with just 124 orders in 2020-21.

Queensland Sentencing Advisory Council data showed that between 2005-06 and 2018-19, detention orders accounted for just 2.9% of penalties for youth offenders in Magistrates Court and 17.6% in the higher courts (which hear the more serious matters).

The reality is that the number of children held in custody is exceedingly small.

The impact on victims of crime

Where do victims of crime fit into such a proposal to raise the age?

Instances such as the murder of James Bulger in 1993, for example, would go unpunished. Bulger, who was two years old, was abducted by two ten-year-olds from a shopping centre in the United Kingdom. They then tortured him over several hours before they crushed his skull, inflicting 42 injuries in total. Both were convicted of murder and served eight years in prison.

From a victim’s perspective, it’s difficult to argue there should be no consequences for the perpetrators’ actions. Indeed, the impact on the victim is one of the principles to be considered when sentencing children in Queensland.

If the age of responsibility is raised, what capacity will there be to properly and effectively deal with young people who otherwise would be committing offences? How would victims be empowered under such a regime and community safety be ensured?

Raising the age won’t address the causal effects of crime

As Queensland Attorney-General Shannon Fentiman stated during debate for the proposed bill to raise the age of criminal responsibility in that state:

Simply changing the criminal law does not reflect the complexity underlying youth offending and why children as young as ten years old commit these offences.

These complex issues include substance abuse, being affected by domestic violence, mental health, being disengaged from education, a lack of suitable accommodation and poor parenting.

Addressing risk and protective factors at the individual, family, social and community levels is crucial in addressing offending behaviour.

Many of these issues were present in the case of an 11-year-old boy found guilty of the manslaughter of Perth man Patrick Slater, who was stabbed to death with a screwdriver in 2016.

He was jailed for four years. The boy was kept in custody prior to his sentencing for almost two years because of an inability to find a responsible person to care for him.

Raising the age will not stop such a crime being committed, nor the causes of it – it just means no one will be held accountable.

We should not be raising the age of criminal responsibility

Raising the age is a response that removes responsibility for poor behaviour, but doesn’t necessarily address any underlying causes of youth crime. Addressing these is what may actually assist young people in not offending.

How we punish young people who transgress is a separate issue. Understanding the consequences of your actions is also a separate issue to knowing if what you did was right or wrong.

We must ensure we don’t weaken our criminal justice system in a way that will ultimately fail our young people by creating a generation with no sense of personal responsibility.

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