A NEW study by the NSW Bureau of Crime Statistics and Research (BOCSAR) has found a significant decline in the number of children aged 10 to 13 years found guilty of a criminal offence in NSW, following a landmark High Court of Australia decision in 2016.
The decision in the case of RP v R clarified the application of the legal principle of “doli incapax”, which presumes that children under 14 years are incapable of criminal responsibility unless proven otherwise.
The High Court’s 2016 decision clarified that to rebut the presumption of doli incapax, the prosecution must prove that the child understood their actions were seriously wrong, not merely naughty.
The judgement requires prosecutors to provide proof beyond merely showing that the child committed the offence, and that the offence was “obviously wrong”.
Following the ruling, the proportion of 10-13 year olds with a proven outcome in the NSW Children’s Court fell dramatically from 76 percent in 2015-16 to 16 percent in 2022-23.
Over the same period, the volume of 10-13 year olds charged by police has been mostly stable.
The decline in proven outcomes was accompanied by an increase in cases where all charges are withdrawn by the prosecution, rising from 12 percent in 2015-16 to 53 percent in 2022-23.
There has also been a notable decline in guilty pleas among this age group, falling from 54 percent in 2015-16 to 14 percent in 2022-23.
The findings highlight that, despite the formal age of criminal responsibility remaining at 10 years, it is now very uncommon for a child aged under 14 to be found guilty of a crime in NSW.
Commenting on the findings BOCSAR Executive Director, Jackie Fitzgerald, said that the High Court decision appears to have made it more difficult to convict younger children.
“The trend is most evident in states such as NSW, Victoria and South Australia, which rely on a common law understanding of doli incapax,” she said.
“States which have defined doli incapax in legislation, such as Queensland, Western Australia and Tasmania, have not shown a similar decline.
“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.”
Last week, following the release of BOCSAR’s findings, the NSW Government launched a review into doli incapax.
The review is being undertaken by former Supreme Court Justice, the Honourable Geoffrey Bellew SC, and former NSW Police Deputy Commissioner, Mr Jeffrey Loy.
The pair will consider how the presumption of doli incapax is applied in criminal proceedings, the impact of its operation on options for intervention, what improvements could be made and a framework for legislation.
They will also consider how doli incapax interacts with the Young Offenders Act 1997 and the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, and other relevant matters including community safety and the interests of children.
Stakeholders including victims’ groups, local and regional communities, Aboriginal-led organisations and legal and government stakeholders will be consulted as part of the review.
They are due to report back to the Attorney General in the second half of 2025.
Member for Oxley Michael Kemp said residents in his electorate would welcome the review.
“The people of Oxley have been calling for action on youth crime, and a review into doli incapax is a step they’ve been asking for.
“The ancient presumption that kids under 14 can’t understand right from wrong isn’t fit for purpose today.
“When young people are posting videos of their crimes online or running from police, it raises serious questions about their level of understanding.
“The aim isn’t to punish kids, but to protect communities while making sure we’re giving every young person the best chance to make better choices.”
