Six teenagers charged with murder and the age of criminal responsibility in Australia

Six teenagers charged with murder and the age of criminal responsibility in Australia 

Six teenagers have been charged with murder following the death of a 16-year-old boy in Doonside last week.

The boy died after allegedly being brutally bashed by 6 teenagers in a housing commission residence in the area of Doonside in Western Sydney.

The police allege that the offenders each had their turn stomping, jumping and punching him.

The assault was recorded on mobile phones and displayed all over social media, however was later taken down due to its graphic nature.

The boy was found unresponsive on August 4, and died 3 days later in Westmead Hospital.

According to Police, he sustained injuries and blunt force trauma to his head, chest and body, as well as swelling on the brain and  collapsed lungs.

It was alleged that the assault began due to the child’s postcode gang affiliation and a pair of earphones that went missing from the home of 19 year old woman, who was one of the participants in the assault.

The other offenders were two 13-year-old boys, a 14-year-old boy, a 15-year-old boy, and a 15-year-old girl.

Each of them have been charged with murder.

The four boys and the 15-year-old girl were also charged with the offences of causing grievous bodily harm to a person with intent and detaining in company with intent to get advantage occasioning actual bodily harm.

All children appeared in the children’s court but were refused bail.

What is the age of Criminal Responsibility in Australia?

The accused teenagers, all except for the 19 year old woman, are under the age of 18 and therefore will be treated under the law as children.

Children are subject to different charges and sentences to adults for criminal matters.

In all Australian jurisdictions, the age of criminal responsibility is 10 years old.

This means that no child below the age of 10 can be arrested, summonsed or found guilty of a criminal offence.

All teenagers convicted for the assault of the 16-year-old boy are above the age of 10, therefore are able to be found guilty of any type of criminal offence.

What is the law that governs the Age of Criminal Responsibility in Australia?

Australia’s age of criminal responsibility is governed by section 5 of the Children (Criminal Proceedings) Act 1987.

This contains the rule pertaining to the age of criminal responsibility in all Australian jurisdictions, being stipulated as 10 years of age.

This statutory presumption is irrebuttable and cannot be challenged.

Doli incapax

This age is derived from the long-standing common-law doctrine of ‘Doli incapax’ which presumes that a child between the ages of 10 and 14 cannot commit a crime because he or she does not understand the difference between right and wrong.

However, unlike the statutory presumption, the common law presumption is not absolute, and can therefore be reputed.

R v CRH (1996) is the leading case in NSW which affirms the common law existence of Doli incapax. Newman J sets out the test for rebutting doli incapax, relying on the House of Lords L Decision C v DPP [1995] which provides the five elements of this test:

  1. The prosecution must rebut the presumption of doli incapax as an element of the prosecution case.
  2. The child knew the act was seriously wrong as opposed to naughty.
  3. The evidence relied upon by the prosecution must be strong and clear beyond all doubt or contradiction.
  4. The evidence to prove the accused’s guilty knowledge, as defined above, must not be the mere proof of doing the act charged, however, horrifying or obviously wrong the act may be.
  5. The older the child is, the easier it will be for the prosecution to prove guilty knowledge.

Origins of the Age of Criminal Responsibility in Australia

Due to Australia’s colonisation in 1788, the English common law in existence at the time was applicable to the colony of New South Wales.

As a result, the age of criminal responsibility in English common law became the law in Australian colonies.

The formation of the Commonwealth of Australia in 1901 meant that laws relating to the age of criminal responsibility can now be determined by each state and territory.

All states, however, follow the same age of criminal responsibility, which is as conferred upon by statute.

The UK position is currently that the age of criminal responsibility is 10 years of age, and prior to 1998, the doli incapax doctrine also existed in England.

However, it was the Bulgar case, involving the brutal bashing and murder of a 2-year-old boy, James Bulgar, by two ten-year-old boys that lead to the abolition of doli incapax in England.

Although doli incapax had not yet been abolished, both boys were deemed to know right from wrong and were therefore prosecuted.

Whilst the boys were still sentenced to imprisonment for the murder of Bulgar, psychiatrists assessing the boys contended that they were at a “less mature psychological or emotional age” to be completely aware of the seriousness of the crime they committed.

England has removed doli incapax, meaning that the prosecution is not able to dispute the age of criminal responsibility, despite being able to prove that the accused child was able to distinguish between right from wrong.

In Australia however, the doli incapax doctrine still exists and the right to rebuttal is affirmed by common law principles. 

Why does Australia prefer a low age of criminal responsibility? 

In keeping the age of criminal responsibility at 10 years of age, some are of the view that Australia’s development of specialized institutions and processes for dealing with young offenders is focused on rehabilitative measures such as child welfare and reform policies on retributive concerns.

The Australian Institute of Criminology has continually published quarterly statistics on numbers and rates of juveniles in corrective institutions.

Australian Criminologists Carlos Carcach and Glenn Muscat assert that the criminal justice system has been primarily focused on rehabilitation and prevention of further offending, rather than simple punishment. 

They also believe that a low age of criminal responsibility means that young child offenders, especially of serious crimes, can be punished adequately as they will be held legally accountable.     

Criticism of Raising Australia’s age of criminal liability by International Organizations

Australia’s age of criminal responsibility has gained much international controversy and considerable criticism by the United Nations Committee, who are critical of jurisdictions in which the minimum age is less than 12 years old.

In other countries such as Japan, Portugal and Spain, it is 16 years old, whilst in Austria, Germany and many other European countries, it is 14 years old.

In Scotland however, virtually no child below 16 years of age who has committed an offence has been prosecuted in criminal courts.

In other countries, the children charged for the assault of the 16-year-old boy in Doonside would have just reached the age of criminal responsibility, meaning they would be able to be convicted for murder.

However, because they were just above the age of criminal responsibility in these other jurisdictions, such as across Europe, where the age is 14, the courts would be much more lenient than in Australian jurisdictions.

Very recently, during Australia’s United Nations Universal Periodic Review, the UN Committee, in support of 31 other UN member states, urged Australia to increase the age of criminal responsibility to 14 years of age.

Amnesty International have also campaigned for this, expressing that children imprisoned at a formative age will suffer great emotional harm and this will inflict lasting damage upon the wellbeing of a child.

Child Development experts from the University of New South Wales conducted a report into the effects of incarceration on young offenders, finding that imprisonment crucially affects their development.

The Researchers found that it increases children’s risks of depression, suicide and self-harm, leads to poor emotional development and results in poor education outcomes.

In 2019, the Council of the Attorney’s General (CAG) established a review into this issue, but currently no reforms have been made.

In February 2020, the Australian Human Rights Commission also made recommendations for Australia to raise the age of criminal responsibility to 14 years of age.

The AHRC reports that most child offenders have disadvantaged backgrounds and complex needs, that younger cohorts commit less serious offences, and that detention has had an adverse impact on children.

They also concluded that Aboriginal and Torres Strait Islander children especially are overrepresented in the younger youth justice and that in order to comply with our international human rights obligations,

Australia’s age of criminal responsibility should be in line with other countries.

Conclusion

Australia still remains one of the only nations left with one of the lowest ages of criminal responsibility in the world.

Whilst currently all states and territories in Australia follow the Commonwealth legal age of criminal responsibility, there has been a demand for states to adopt their own age of criminal responsibility.

In the above matter which involved the murder of the 16 year old boy by six other teenage children, these children were not able to escape legal accountability despite being youth offenders.

Australia has been pressured by international organisations, especially the United Nations who believe that Australia, being signatory to the CROC, have a legal implication to raise the age of criminal liability.

Since the 2019 inquiry into this made by the Attorney General, there have still not been changes made but this may change in the future.

If you have any further questions please contact the author who is a Lawyer in Newcastle New South Wales.

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