Drop in kids going to jail prompts controversial review
Farid Farid |
Fewer under-14s are going to jail as fears about youth crime have prompted one government to take another look at the legal principle of children being “incapable of evil”.
A study published on Thursday reveals a five-fold decrease in the number of young people aged 10 to 13 found guilty of a crime in Australia’s most populous state.
The downward trend in NSW mirrors other states including Victoria with a 10-fold decline and South Australia which recorded a five-fold dip.
The steep falls follow a High Court decision in 2016 reaffirming minors under 14 were incapable of criminal responsibility unless proven otherwise.
Doli incapax, the Latin for incapable of evil, is a legal presumption that children between the ages of 10 and 14 do not sufficiently understand the difference between right and wrong to be held criminally responsible.
The decision in the case RP v R appears to have made it more difficult to convict younger children, the NSW crime statistics agency found.
The study shows the proportion of youths aged 10 to 13 with a proven outcome in the NSW Children’s Court fell dramatically over the seven years to 2023, from 76 per cent to 16 per cent.
That was despite the volume of children in that age group charged by police remaining mostly stable over that period.
The report also recorded a notable decline in guilty pleas among the age group, falling from 54 per cent of cases to 14 per cent over the seven years.
The research comes amid a national debate about youth crime, with Victoria’s opposition claiming it is “out of control” and the NSW opposition floating changes to doli incapax and bail laws.
NSW Attorney-General Michael Daley on Thursday announced a review into doli incapax, including its impact on options for intervention, potential improvements, and interaction with mental health laws.
The review will be led by experts in criminal law, former Supreme Court judge Geoffrey Bellew and retired NSW police deputy commissioner Jeffrey Loy.
The pair are due to report back in the second half of 2025.
The NSW Council for Civil Liberties decried the move as unwarranted, not rooted in evidence and a waste of taxpayers’ money.
“Less young children in prison is a good thing. This review does nothing to achieve that goal and only risks making it worse,” the council’s president Tim Roberts said.
“Whatever the complex issues that some communities have faced over the past months, these things do not change with efforts that might result in more young children being placed in prison.”
The downwards trend was not seen in states where doli incapax has been defined in legislation, such as in Queensland, Western Australia and Tasmania.
“The result raises questions about how best to support vulnerable young people who participate in crime at an early age in order to reduce future harm to themself and the community,” NSW Bureau of Crime Statistics and Research director Jackie Fitzgerald said.
She said many young offenders do not commit crimes once they are adults, learning from their experience.
But for a small number who do re-offend, more holistic solutions are needed.
AAP
