THE CASE FOR RAISING THE MINIMUM AGE OF CRIMINAL RESPONSIBILITY

Esther Sophia

ABSTRACT: The debate surrounding the minimum age of criminal responsibility is not new. However, it was recently heightened given the North Territory’s decision to raise theirs and the more recent decision in Victoria which had not been enacted at the time of writing. This essay discusses, in the context of the Queensland Criminal Code, the current status of the minimum age of criminal responsibility; current arguments against its raising; the effect of minimum age of criminal responsibility as it currently stands; introduces a potential reform to the legislation, and how this reform may be enacted.

I Introduction

In Queensland, section 29 of the Criminal Code Act 1899 (Qld) (‘the Code’) sets the minimum age of criminal responsibility (‘MACR’) as 10 years old.373 Further to the MACR, the rebuttable presumption of doli incapax exists to a child’s 14th birthday, stating that until that point in time it is on the prosecution to prove that a child was aware of the consequences of their actions or omissions and thusly may be held to be criminally responsible for them. Just across the border from Queensland, the Northern Territory has recently passed a bill to raise the MACR to 12 years old, with the rebuttable presumption of doli incapax still existing for 12 and 13 year old children.374 Meanwhile, internationally, the United Nations benchmarks 14 years old as the MACR.375 While the discrepancy between the Northern Territory and other jurisdictions of Australia may be explained away by the very recentness of the passing of the bill in the Northern Territory, why is it, that in general, Australia considers their children to be so much more mature than the children of the world such that they may understand the consequences of their acts and omissions and right from wrong where other jurisdictions do not agree. While there is opposition in Queensland to raising the MACR due to the impact on the victims of crimes and that in the opinion of the Queensland Attorney General Shannon Fentiman raising the MACR should be a national approach and the issue that raising the MACR will not lead to addressing the underlying causes of crime, it is still the opinion of many, including the author that now is the time for section 29 of the Code to be reformed.

Ii Current Status Of The Macr

In Queensland, under section 29(1) of the Code, it is considered that a child under the age of 10 years old cannot be held criminally responsible for their acts or omissions.376 Section 29(2) goes further to state that a child over the age of 10 but under the age of 14 years old cannot be held criminally responsible for their acts or omissions, unless the prosecution can prove beyond a reasonable doubt, that the child had the capacity to understand that said act or omission was wrong, this presumption under section 29(2) of the Code is known as the rebuttable presumption of doli incapax.377 In the High Court case of RP v The Queen, the rebuttable presumption of doli incapax was explained as being related to the moral and intellectual development of the child in question in relation to the offence in question.378 The distinction was further made that ‘…the further dimension of proof of knowledge of serious wrongness as distinct from mere naughtiness.’379 The Queensland case of R v KOD discusses capacity to know that the act was wrong as requiring consideration of education – both of moral issues and schooling, decision making and emotional development in relation to understanding, beyond the exploration of a general youthful nature.380 This subjective nature of the test for doli incapax, alongside the very young age of 10 years old to 14 years old creates a web of difficulty in the application of the test. All Australian jurisdictions currently have similar sections in their Criminal Codes or Crimes Acts, listing the MACR as 10 with doli incapax applying until the 14th birthday. The international standards for criminal responsibility and the rebuttable presumption of doli incapax generally differ. The United Nations recommends the age of 14 as being the MACR, and generally European countries have their MACR between 14 years old and 16 years old with a few outliers such as Scotland at 12 years old and England and Wales joining Australia at 10 years old.381

373 Criminal Code Act 1899 (Qld) s 29 (‘Code’).

374 Criminal Code Amendment (Age of Criminal Responsibility) Bill 2022 (NT) (‘NT Bill’).

375 Committee on the Rights of the Child, General Comment No 10: Children’s Rights in Juvenile Justice, 44th sess, UN Doc CRC/C/GC/10 (25 April 2007), 30].

376 Code (n 1) s 29(1).

Iii Opposition To Raising The Macr And Rebuttal

There has already been significant opposition to the idea of raising the MACR with the primary focus of the opposition being the impact on the victims of crime to do so, whether the MACR should be a national approach, and how raising the MACR will address the causes of crime. While statistically, the majority of crimes committed by children are minor, such as theft, trespass to property and property damage, on occasion, a crime so horrific it piques the interest of the world media is committed by a juvenile.382 The murder of two year old James Bulger in the United Kingdom by two 10 year old boys is one such event which also occurred at the time raising the MACR was being considered in England and Wales. 383 For this reason, this murder, and the impact of the murder on the family of James is regularly raised as an argument against raising the MACR. Less widely publicised is the Western Australian murder of Patrick Slater who was attacked by a group of eight, which included an 11 year old child, a more localised argument against raising the MACR.384

It is true that the Bulger family and the Slater family have been impacted by the actions of these three youth offenders and that raising the MACR will not afford these families a feeling that justice has been done. However, there is no argument that can be raised, no term of imprisonment, and no criminal justice system action that could possibly ever hope to give recourse to these families either. Nothing can bring James and Patrick back to life, those families will never be whole again. Locking the offenders up only serves to give the appearance of justice, the closest we as a society can get to true justice is to ensure that we do all within our power to prevent these offences from being repeated, the key to prevention of crime, lays in breaking the cycle of recidivism. This applies to all crime in general, not only the crimes of youth offenders.

377 Code (n 1) s 29(2).

378 [2016] HCA 53 [12].

379 Ibid [11].

380 [2022] QChC 25 [69] – 74].

381 Australian Human Rights Commission, Review of the Age of Criminal Responsibility (Submission 26 February 2020) [4.7].

382 Australian Institute of Health and Welfare, Young People Aged 10–14 in the Youth Justice System 2011–2012 (Report, 2013) [7].

383 John Neville Turner, ‘The James Bulger Case: A Challenge to Juvenile Justice Theories’ (1994) 68(8) Law Institute Journal 734.

384 PRM (a child) v State of Western Australia [2017] WASC 139.

In June 2022, 56% of youth offenders in detention were Indigenous, while Indigenous people only make up 6% of the Australian population.385 While it is clear that the Indigenous population is drastically overrepresented in the Australian Criminal Justice System in general with Indigenous Australians making up approximately 32% of Australia’s incarcerated population in the September quarter of 2022, the ratio of incarcerated Indigenous youth offenders is significantly higher.386 In Australia, 45.2% of prisoners released from incarceration in 2018-2019 returned to prison within two years, in the same period 53.1% of prisoners released from incarceration returned to the criminal justice system in any form, inclusive of imprisonment.387 One argument against the MACR being set at 10 years old in Australia is the fact that the statistics show that by incarcerating our youth, society is starting a cycle of recidivism early, which additionally disproportionately affects the Indigenous population.

An additional argument against raising the MACR, has regularly been that raising the age will not address the causes of crime such as substance abuse, domestic violence, mental health, education, accommodation, and poor parenting. While this may be true, having the age of criminal responsibility as being 10 years old, also fails to address the same causes of crime. Raising the MACR need not affect the introduction of support services to youth offenders, it merely prevents an entry into the criminal justice system and the commencement of a cycle of recidivism at a young age. It can in fact, be seen as an opportunity for early engagement with support services who can address the abovenamed causes of crime and work towards the prevention of the recurring cycle of recidivism and intergenerational offending without the confusion of a court system that can be harmful to a child’s wellbeing.

Queensland Attorney General Shannon Fentiman has also consistently stated that raising the age should be a national approach, quoting former police commissioner Bob Atkinson as being for the purposes of preventing ‘…something in Tweed Heads that is not an offence but if they stepped over the border into Coolangatta it would be’.388 Her argument is effectively moot now following the November 2022 passing of the Northern Territory Bill to change the MACR to 12 years old.389 In fact, the Northern Territory change only makes the need for change elsewhere more emergent, as to have an 11 year old in Piturie deemed to be criminally responsible for a crime, which if committed 70km away in Alpurrurulam they would not be, is now a very real issue.

While the issue of the MACR in Queensland and Australia in general has become more widely discussed recently due to the Northern Territory’s November 2022 decision to raise their MACR to 12 years old and their commitment to revisit raising the MACR further in the future, this issue is by no means a recent topic of debate and has been widely discussed for many years with the ‘Raise The Age’ campaign born in 2020 following the Australian Human Rights Commission’s 2019 Children’s Rights Report.390 Alongside the issues of the impact on Indigenous communities and the cycle of recidivism is the issue of the maturity of a person as young as 10 years old. When considering the maturity of a 10 year old, a 12 year old and even a 14 year old, the author finds it hard to reconcile imprisoning them or introducing them to the criminal justice system. The prefrontal cortex of the brain is the area of the brain associated with rationality, good judgment, and awareness of consequences, while the amygdala is associated with emotions and short term.391 Studies have shown that the connections between the amygdala and prefrontal cortex develop as a child matures and that this can take up to the age of 25 years of age, with the prefrontal cortex, the area of brain so critical to criminal responsibility being one of the last areas of the brain to finish maturing.392 It is understood through doli incapax that some children may or may not understand the consequences of their actions, however the understanding is not taken far enough, the science shows us that the MACR is clearly not high enough to afford justice to youth who do not have a fully developed brain.

385 Australian Institute of Health and Welfare, Youth Detention Population in Australia 2022 (Web Report 13 December 2022).

386 Australian Bureau of Statistics, Corrective Services, Australia, September Quarter 2022 (Catalogue No 45120DO001_202209, 24 November 2022).

387 ‘Released Prisoners Returning to Prison’, Sentencing Advisory Council (Web Page 4 November 2022) <https://www.sentencingcouncil.vic.gov.au/sentencing-statistics/released-prisoners-returning-to-prison>.

388 Queensland, Parliamentary Debates, Legislative Council, 16 August 2022, (Hon. Shannon Fentiman, Attorney-General).

389 NT Bill (n 2).

390 Ibid; Megan Mitchell, Children’s Rights Report 2019, In Their Own Right: Children’s Rights in Australia (Report, 28 October 2019).

When discussing the impact on Indigenous Australians, the maturity of children and the underlying sources of crime, these issues can all be linked together within the overall topic of disability, with a particular prevalence of Foetal Alcohol Spectrum Disorder (FASD) cases. The socio-economic issues facing Indigenous Australians are well known to include issues around substance abuse, and FASD is reported in significantly higher numbers in Indigenous communities than in non-Indigenous communities across all of Australia.393 A Western Australian study determined that between May 2015 and December 2016, 36% of youth offenders had been diagnosed with FASD.394 In its concluding observations on Australia in 2019, the United Nations Committee on the Rights of Persons with Disabilities expressed particular concern at the number of youths with disabilities in the Australian criminal justice system, which also raises the question as to the efficacy of the rebuttable presumption of doli incapax. If doli incapax is working to its design, a child between the ages of 10 and 14 years old is deemed to be ‘incapable of evil’ unless the prosecution can prove beyond a reasonable doubt, that they are capable of understanding the consequences of their acts or omissions, so then how are 36% of Western Australian youth offenders who suffer from FASD, which very often causes cognitive disability, deemed to be criminally responsible for their actions?

Iv Reform To The Macr In Australia

In the opinion of the author, a change to section 29 of the Code should look as follows:

Section 29 Immature Age

(1) Any person under the age of 14 years is not criminally responsible for any act or omission.

(2) A person under the age of 16 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission the person had capacity to know that the person ought not to do the act or make the omission.

It is not the intention of the author that any crime committed under the age of 16 where the person offending is not deemed to be criminally responsible should face no consequences, instead the author suggests a Court Integrated Services Program (CISP) to assist the offender with remaining outside of the criminal justice system until the age of 16 years old. CISP will be tasked with assigning a case manager to the offender and the immediate family/guardian/s of the offender, who will meet regularly with them and refer them to appropriate support services, not limited to mental health support services, drug and alcohol support services, accommodation services, Murri support services, parenting support services, education support services and domestic violence support services. Queensland already has many of these support services in place, both for adult and youth offenders, by integrating these services with the court, and assigning the offenders a case manager, the purpose will be to get to the root cause of crime and assist to manage those issues with the ultimate aim of prevention of further offending.395

391 ‘Understanding the Teen Brain’, University of Rochester Medical Centre (Web Page, 2022) <https://www.urmc.rochester.edu/encyclopedia/content.aspx?ContentTypeID=1&ContentID=3051>.

392 Ibid; ‘The Teen Brain: 7 Things to Know’, National Institute of Mental Health (Web Page, 2020) <https://www.nimh.nih.gov/health/publications/the-teen-brain-7-things-to-know>.

393 Australian Institute of Health and Welfare and Australian Institute of Family Studies, Fetal Alcohol Spectrum Disorders: A Review of Interventions for Prevention and Management in Indigenous Communities (Resource Sheet No 36, February 2015) 5.

394 Carol Bower et al, ‘Fetal Alcohol Spectrum Disorder and Youth Justice: A Prevalence Study Among Young People Sentenced to Detention in Western Australia’ (2018) BMJ Open 1, 6.

Victoria already has CISP in place for criminal offending and CISP can be commenced at any stage between offending and sentencing in the Victorian Magistrates’ Courts so long as it is a Magistrates’ Court which offers the service.396 Other Australian jurisdictions also currently have specialist courts and diversion programs which operate in a similar manner.397 To extend CISP to youth offenders, below the age of criminal responsibility would not require a significant amount of extra services to be introduced, only the realigning of the existing services and the introduction of the specialised youth case managers.

As with the Northern Territory bill, all convictions, or charges against a person for any offence committed under the new MACR, that being 14 years old should be expunged under the proposed reform to section 29 of the Code. When it comes to cases already before the criminal justice system but not yet finalised, all charges should be immediately upon the commencement of the new MACR withdrawn and priority entry into the new CISP should be commenced. For the avoidance of doubt, any criminal matter finalised prior to the introduction of the new legislation in Queensland which involves a child between the age of 14 and 16 years old should also be expunged, however, any matter not yet finalised within the same doli incapax age group should follow the prior process to determine whether the youth can be deemed to be criminally responsible for their actions. As with the Northern Territory Bill, no compensation should apply to previous, finalised matters, including but not limited to the refunding of any fines that were payable in relation to the criminal offending.398

V Conclusion

Raising the MACR and the rebuttable presumption of doli incapax, to 14 and 16 years old respectively, will result in firstly the reduction of youth offenders in the criminal justice system, but long term will assist in addressing the disproportionate number of Indigenous Australians in the criminal justice system. With early intervention in a less formal manner, the underlying causes of crime such as mental health, education, accommodation, substance and parenting issues, amongst others, have an ability to be addressed and solutions put into place. To the authors mind, there is no doubt that any method we as a society can utilise to reduce the number of offenders in the criminal justice system at any age, results in a reduction of recidivism and is better for society, the well-known theory of therapeutic jurisprudence as created by Professors David Wexler and Bruce Winick in the 1980’s and the following introduction of the 1990’s of Collaborative Courts in Australia supports this. 399

395 ‘Alternatives to Prison’, Raise the Age (Web Page) <https://raisetheage.org.au/campaign>.

396 “Bail Support (CISP)’, Magistrates’ Court of Victoria (Web Page, 4 July 2019) <https://www.mcv.vic.gov.au/findsupport/bail-support-cisp>.

397 Australian Law Reform Commission, Incarceration Rates of Aboriginal and Torres Strait Islander Peoples (Discussion Paper No 84, 19 July 2017) [11.18] – [11.50].

398 NT Bill (n 2) s 469.

399 The Concept of Therapeutic Jurisprudence’, The Australasian Institute of Judicial Administration (Web Page, 2022) < https://aija.org.au/research/resources/the-concept-of-therapeutic-jurisprudence/>; Elena Marchetti and Kathleen Daly, ‘Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model’ (2007) 29 Sydney Law Review 415, 425.

Additionally, the author would be hard pressed to find a source that states a developing mind would be better off in prison as opposed to school. As to the issue of justice for the victims and their families, perhaps a CISP inclusive of restorative justice can be of assistance. As previously mentioned, there can never be true justice for the victims of crime, however understanding of the offender and a hope that future crimes can be prevented may be of some comfort and raising the MACR in the reform as outlined above is an easy first step towards the prevention of future crime.