13th of april 2019


Contrary to popular belief, in Victoria, the age of criminal responsibility is fourteen years. There is a presumption at law that a child cannot form criminal intent, knowing right from wrong before this age.

From age ten to fourteen the law acknowledges that a child can form criminal intent, but the onus is on the prosecution to convince a court that the child knew right from wrong, the actions of the child alone do not of themselves, constitute having proved the intent.

As with most principles at law, there is quaint Latin phrase to make it sound important “Doli Incapax”, “ incapable of forming the intent to commit a crime or tort, especially because of age (under ten years old).

These principles have been in vogue for many many years and have served this State well, but now apparently there is a push to raise the absolute principle from ten years to fourteen and also another suggestion that it should be a ridiculous, sixteen.

We can only hope that the proponents and agitators for these changes run out of the steam that fuels their hot air.

Proponents of this nonsense can be guaranteed to have never enjoyed the responsibility of parenthood, or if they have, they have not guided a young person through adolescence and cannot therefore understand.

There is also a misconception on just how many young people end up with a custodial sentence; it is only about 4.1% of the children appearing before the Children’s Court. And in this State, at least, children do not end up in Jail, they instead are sentenced to Juvenile Detention. The age that a child or young person may be sentenced by any Court to Detention in a Juvenile facility is up to age twenty.

The jurisdiction of the Children’s Court for criminal matters is therefore from ten years to seventeen years with juveniles over seventeen appearing at a higher court can also be sentenced to Juvenile Detention.

There is absolutely no need or justification to change the current age arrangements save one, and that is the age at which Juvenile Detention is not available. Youths over seventeen should not have access to Juvenile Detention because that is the only part of the arguments proffered that makes any sense.

One of the arguments often touted is that putting a child in jail only makes them worse. The first point is, worse than what? Further, they are never detained in a Jail, but an argument could be raised that a youth of eighteen or nineteen should not be in a juvenile facility.

As a society, we give eighteen-year-olds privileges and responsibilities. They can join the armed services and fight and die for our nation, they can get a gun license, they can vote to shape our nation, buy alcohol, obtain a drives licence own property, even join the police force at nineteen, and they are freed from the restrictions to their freedom that the Family Law places on them. We also collect tax from them as well as making welfare available directly to them should their circumstances warrant.

We treat them as adults in every respect but when it comes to taking responsibility for exercising their newfound privileges and find themselves facing detention as a consequence of a crime they can be offered juvenile detention until aged twenty years.

That option is a complete antithesis of their position in society.

We strongly believe that the Corrections Victoria should be given the freedom and authority to manage persons in detention whether they are juvenile or adult and the Courts should refrain from imposing management sanctions or conditions on Corrections system.

The courts see and deal with those who are ultimately incarcerated; the courts however only see them in a sanitised state managed by the perpetrator’s legal representation. Even the many clinical advisors to the courts are consulting in a clinical environment.

It is only Corrections that deals with these prisoners on a twenty-four hour day, three hundred and sixty-five days of the year, so they are best placed to manage all the vagaries of managing prisoners appropriately.

On the matter of age, or more importantly maturity of prisoners, there should be a seamless capacity to transfer between facilities to best serve the Prisoner and the system and although we have no problem with the courts suggesting strategies for a particular prisoner that is all it should be, a recommendation not a Court order.

The responsibility for prisoner management should be rightly placed with the Office of Corrections.