Victorian law establishes a statutory bar to children aged under 10 years of age being held criminally responsible for their actions.
Children aged between 10 and 14 years are further presumed at law, through the principle of doli incapax, to lack the capacity to be criminally responsible for their conduct.
This rebuttable presumption reflects the underlying rationale that a child under 14 years of age is generally not sufficiently intellectually and morally developed to appreciate the difference between right and wrong.
The unique developmental state of children aged 10 to 14 years necessitates a differentiated and age-appropriate response by the criminal justice system. In particular:
- Children aged 10 to 14 years in Youth Justice are our youngest, and often our most vulnerable and disadvantaged group. They often have complex and intersecting issues at much higher rates than found in the general community, and at higher rates than young people who first come into contact with Youth Justice at an older age. These issues can include higher rates of socioeconomic disadvantage, disrupted education, unstable housing, disengagement from the community, alcohol and drug misuse, violent or abusive family environments, physical or intellectual impairment, poor health and mental health, or a history of contact with child protection and out-of-home care. Aboriginal children are also overrepresented at a higher rate in the 10 to 14-year-old age group (almost 25 per cent of that group) than for older groups in Youth Justice.
- Adolescent brains are not fully developed. Children lack the degree of insight, judgment and self-control of a rational adult. This, combined with an increased susceptibility to peer influence, means children are more likely to engage in risky behaviour and come to the attention of police and the criminal justice system. However, this also means that children have a greater capacity for rehabilitation and change.
- Children who do come into contact with the criminal justice system at this early age are more likely to go on to offend again and stay in the criminal justice system. The Sentencing Advisory Council’s report Reoffending by children and young people in Victoria found that in Victoria, young people aged 10 to 14 years have the highest reoffending rates of all ages in the criminal justice system, with more than 80 per cent reoffending at some time, and more than 60 per cent reoffending with an offence against the person. The report showed that for every year a child was older when they appeared before the criminal court, there was an 18 per cent decline in the likelihood of reoffending.
Given the complexity of this cohort, their capacity for genuine change, and the reoffending risks posed by their entrenchment in the criminal justice system, the government is committed to developing new and safe approaches that keep them out of the Youth Justice system, and support them to live lawful and purposeful lives.
Improving diversion and supporting early intervention and crime prevention
- Make every effort to support children staying in school and at home with their family or significant others and diverted away from the criminal justice system. To that end, we are diverting children away from the courts through police cautioning, away from Youth Justice through the Children’s Court Youth Diversion Service, and into the supports they need through the Youth Support Service, Aboriginal Youth Support Service, and child and family services and education more broadly.
- Participate in a national review of the age of criminal responsibility, through the Council of Attorneys-General and implement the recommendations from the review.
Reducing reoffending and promoting community safety by supporting children and young people to turn their lives around
- While children should be kept out of custody wherever possible, the new interim three-precinct approach will enable a more age-appropriate custodial response for our youngest cohort, by providing a dedicated sub-precinct at Parkville to better support their unique needs.
- The new operating model will allow us to provide a differentiated response to this cohort while in custody.
Strengthening partnerships with children and young people, families and all services and professionals who support rehabilitation and positive development
For those young people who do have contact with Youth Justice, we are strengthening our focus on engaging them in the community, with their families and schools, to help keep them on track for a healthy and fulfilling life away from crime.
Investing in a skilled, safe and stable Youth Justice system, and safe systems of work
Our staff will be trained and supported to work effectively with children, including through the new custodial operating philosophy and practice framework for custodial staff.