Criminal Prosecution of Children: Can a Child Be Guilty of a Crime?

Can a child be guilty of a crime? We explain how criminal prosecutions of children work.

Crimes that are carried out by young people are usually a delicate matter. If you, your child or someone you know is being charged with a criminal offence, then it’s important for you to know what the law states.

Interestingly, there are certain circumstances where a child cannot be guilty of a criminal offence.

In this article, we’ll go over the laws that surround child criminal offenes in the Australian Capital Territory to help you gain an understanding of how prosecution of children works.

Child Criminal Offences in the ACT

The age of criminal liability (that is, the age from which a child can lawfully be prosecuted) in the ACT is 10. Section 25 of the Criminal Code 2002 provides that a child under 10 years old is not criminally responsible for an offence. This means that a child who is younger than 10 and the physical elements of a crime is not criminally responsible for their actions and is not liable for prosecution.

For those who are over 10 and below 18, however, their case will be dealt with in the ACT Children’s Court. It is also possible for serious offenses to be elevated to the Supreme Court.

Can a young person be held in custody?

If a child 10 and over has been charged, they may be granted bail or they may be placed in remand at a youth detention facility.

Bail is granted when the court finds that the youth does not pose an unreasonable risk to their community. Other factors such as the personal circumstances and history of the child and their level of maturity will also be taken into consideration by the Court.

If the child is refused bail, they will be held in a youth detention facility until they are either granted bail after applying for bail again, or until their charges are heard in Court and the child is found not guilty of the offence or alternatively until they are sentenced after being found guilty or pleading guilty.

Bail for children is handled differently to for adults, in that there are additional criteria to be considered, including for example, that if the young person is held in custody, it should be for the absolute minimum time necessary.

The youth detention must abide by the following according to the Children and Young People Act 2008:

• Ensure that the child’s human rights are respected and protected.
• Treat the child decently and humanely.
• Not subject the child to torture or other cruel and degrading treatment.
• Not further punish the child through the conditions within the facility.
• Promote the child’s rehabilitation and reintegration into society.
• Provide adequate food, drink, and clothing to the child.

When a Child Becomes an Adult in Youth Detention

There is also the possibility that the youth matures into an adult while carrying out their sentence in youth detention. In this situation, before they are 21 years of age, the director-general will have a choice between transferring the youth to an adult prison or letting them complete their sentence in youth detention. If they turn 21, they must be transferred to the adult prison.

Several factors will come into play for this matter. These will include the child’s own wishes, the behaviour displayed while in detention, and the remaining duration of their sentence. However, it should be noted that the director-general must and will make their decision based on the best interests of the child.

Conclusion

We understand that your child being dealt with through the criminal justice system can be a challenging ordeal. However, you should have some faith in the same system that your child will be handled differently to adults and given opportunities for rehabilitation and re-entering the community in accordance with the law. It will undoubtedly be difficult to navigate this process, but take comfort in knowing that successful rehabilitation is indeed possible and is usually the best option.

If you are looking for more legal information or advice in the ACT, or if you are looking for an experienced criminal lawyer, contact us today. Andrew Byrnes Law Group are leading criminal lawyers serving Canberra, Wollongong, Queanbeyan, Goulburn and surrounding locations in Australia.