How the Criminal Justice System Treats Young Offenders Differently
The criminal justice system treats those that are under the age of
18 differently, due to a different level of criminal responsibility that is
held. This is derived from the fact that they may need protection or assistance
due to factors such as immaturity and inexperience. They are treated
differently through two main measures, mens rea as well as sentencing and
punishments. For example, the criminal justice system has a provision for those
aged under 14 called Doli Incapax, a presumption that young children are
‘incapable of wrong’ and hence lack the mens rea necessary for a conviction of
a crime. However, this is a rebuttable presumption, meaning the prosecution
needs to prove beyond reasonable doubt that the child was capable of knowing
right from wrong. Doli Incapax is a conclusive presumption, however, for those
aged below 10, meaning that regardless of crime, they are unable to be
convicted. Those that are above the age of 14 lose the Doli Incapax presumption
as they are believed to be old enough to understand their actions. However, as
they are still young offenders under the age of 18, the state provides them
with protection with full criminal responsibility only occurring once the child
turns 18. This means that those under the age of 18 will not have a criminal
conviction recorded against them unless it was an indictable offence. Other
protections are granted in the criminal trial process with anonymity being one
of the strongest protections given. Under the Children’s (Criminal Proceedings)
Act 1987 NSW, a child’s name is prohibited from being reported with convictions
after three years being cleared if no other convictions occur.
Children on trial for a crime will be heard in a court
specifically dealing with young offenders – the Children’s Court. This court is
different to regular courts with only a magistrate presiding over the court and
no jury present. This is to protect the child in a controlled and safe
environment so as to ease the burden on children. If the crime committed by the
child is an indictable offence it is heard in the Supreme Court of NSW, however
the same rules that are applied in the children’s court are used. These rules
are outlined in the Children’s Court Act 1987 NSW.
Because the law treats sentencing for young offenders as a method
of rehabilitation rather than retribution, as young offenders are not believed
to have full criminal responsibility, the most severe penalty possible is a
control order with the belief that incarceration is often cyclical,
particularly for young offenders – those that are jailed may commit crimes
again. The sentencing options for young offenders is outlined in s.33 of the
Children’s (Criminal Proceedings) Act 1987 NSW with all sentencing options
concentrating on reducing recidivism. Recidivism may also be reduced with alternatives
to court being allowed for young offenders. These include warnings and
cautions, which are given under the discretion of police officers, as well as
youth justice conferences being provided for young offenders whom plead guilty
to their crimes. These alternatives are outlined in the Young Offenders Act
1977 NSW. These alternative measures are aimed to reduce recidivism and
rehabilitate young offenders as it is believed the court system may place a
burden on children, increasing the likelihood of recommitting crime.
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