HSC Legal Studies · The Crime Core (30%)
Chapter 5
Young Offenders
Why the law treats children differently — doli incapax, their rights, and diversion · NESA Syllabus 2009
Where we're going
By the end of this chapter you can…
- State the minimum age of responsibility and explain doli incapax
- Use RP v The Queen and evaluate the "raise the age" debate
- Explain children's rights when questioned or arrested
- Describe the Children's Court and its principles
- Explain the Young Offenders Act 1997 diversion hierarchy and penalties
5.1 The minimum age
Three age bands in NSW
Under 10
Conclusively not responsible — cannot be charged.
10 to under 14
Presumed doli incapax — but rebuttable.
14 and over
Full criminal capacity (still youth justice).
Minimum age = 10 — Children (Criminal Proceedings) Act 1987 (NSW).
5.1 Doli incapax
What the prosecution must prove (10–13)
That the child knew the act was seriously wrong — not merely naughty. And it can't be inferred from the act alone.
RP v The Queen [2016] HCA 53
Boy aged ~11½; the High Court quashed the conviction — doli incapax was not rebutted. The leading modern authority.
5.1 Fix your notes
The 10–13 presumption is REBUTTABLE
Only children under 10 are conclusively not responsible. For 10 to under 14 the prosecution can rebut the presumption with evidence.
5.2
Models & the "raise the age" debate
5.2 Two models
Welfare vs justice
Welfare model
Protect & support the child; rehabilitation; address the causes of offending.
Justice model
"Tough on crime"; accountability & punishment for choices.
NSW blends both — divert most, hold serious offenders to account.
5.2 Law reform
"Raise the age"
- ACT — 12 (2023) → 14 from 1 July 2025
- Victoria — 12 (2025); dropped the plan to reach 14
- NSW — still 10; considering diversion alternatives
A live, contemporary reform — driven by the UN Convention on the Rights of the Child.
5.3
Rights on questioning & arrest
5.3 Extra protections
Why children get more safeguards
- Key Support person — admissions are inadmissible without one present
- Caution — right to silence; critics say the wording is too complex
- Searches — strip search needs a support person; none under 10
- Forensic procedures — usually need a court order (Crimes (Forensic Procedures) Act 2000)
5.3 The big rule
No support person → confession excluded
Even a true confession is generally inadmissible if no support person was present — young people are more suggestible.
Protects fairness & reliability — a "balancing rights" point.
5.4 A specialist court
How it differs from an adult court
Features
Closed court; identity protected; magistrate, no jury; under-18s.
Principles (s 6)
Understand the proceedings; education continues; stay at home where possible; rehabilitation focus.
Serious indictable offences (murder etc.) → committed to a higher court.
5.5
The Young Offenders Act 1997
5.5 Diversion hierarchy
Warnings → cautions → conferences → court
Warning
Least serious. No admission needed; no conditions; no record.
Caution
Needs admission + consent. Formal; no conviction.
Youth justice conference
Admission + consent. Restorative; outcome plan with the victim.
Too serious for these → the Children's Court.
5.5 Why divert?
Keep young people out of the system
Early formal contact can entrench offending. Diversion pursues rehabilitation and cuts reoffending — BOCSAR finds conferencing beats court for suitable youth.
5.6
Penalties for children
5.6 Penalties
Detention is a last resort
- Dismissal / caution · good behaviour bond · fine
- Probation · community service order
- Control order (detention) — in a youth justice centre, not adult gaol — last resort
Very serious offences (e.g. murder) → dealt with in an adult court.
End of Chapter 5
Recap & check
Age & doli incapax (RP v The Queen) · welfare vs justice & raise the age · rights on arrest · Children's Court · Young Offenders Act diversion · penalties (detention last). Next: Chapter 6 — International Crime.