Insight from our team of leading criminal lawyers: Getting away with murder

On 8 July 2020, a 14-year-old girl was charged with murder. This was in relation to the brutal killing of a 10-year-old girl in north-west New South Wales. Emergency services were called to a property at Gunnedah about 7:15am. This followed reports the 10-year-old girl had suffered serious injuries, understood to be serious lacerations to her throat. It’s also understood that the two girls were cousins.

Officers arrested the 14-year-old, and she is being held at Gunnedah Police Station, where she has been refused bail. Gunnedah is situated in the heart of the Namoi Valley on the Oxley Highway. It is just over 430 kilometres from Sydney. The town has a population of about 13,000 people.

This tragic story raises the question – is there such a thing as being too young to be charged or convicted of a criminal offence?

The ‘defence of infancy’

The law recognises that in some cases an offender is too young to be capable of understanding that what they’re doing is wrong. This is otherwise known as the ‘defence of infancy’. As to how old a child must be before they can be charged with criminal offences, the answer varies in different parts of the world. In France, the age is 13. As for the United Kingdom, the age is 10. In the United States, the answer will vary depending upon the state, with some crimes not having any minimum age of responsibility at all.

The law in Queensland

In Queensland, children under the age of 10 cannot be held criminally responsible for their actions. Therefore, they cannot be charged with criminal offences. What that means is that if a child under 10 kills another person in circumstances that would constitute murder, they could never be charged with any criminal offences. Effectively, they might be “getting away with murder”.

Between the ages of 10-14, children are still not considered to be criminally responsible. However, this can be argued by the Crown where it can be demonstrated that the child had knowledge that what they were doing was wrong. If a child is 15 years of age and above, they are considered to be criminally responsible for all actions as an offender. Up until recently, children aged 17 years of age were considered to be adult offenders. However, this law was amended in 2016 to include 17-year-olds as juvenile offenders.

Does the criminal justice system differ for juveniles?

The criminal justice system is extremely difficult to navigate through for adult defendants. Let alone, juvenile defendants. It is important for the child, as well as the parents, to understand the youth justice system and the Children’s Court. This is because it can differ vastly from the adult system.

Juvenile or child defendants/offenders are dealt with under the youth justice system. The relevant principles, procedures, penalties and sentencing options for which are set out under the Youth Justice Act 1992. If the matter is to proceed to Court, all juvenile crime matters proceed to the Children’s Court (Magistrates Court jurisdiction). If the matter is serious, it will proceed onto the Children’s Court of Queensland.

What are the main differences?

Some of the main differences between the juvenile and adult systems are:

  • For juveniles, a parent or guardian is generally required to be present in court;
  • The maximum periods for prison sentences are shorter;
  • If a prison sentence is required they are sentenced to detention as imposed to imprisonment;
  • They are under the supervision of Youth Justice Services as opposed to Corrective Services; and,
  • There are also only two courts in Queensland that deal with juvenile offenders – the Children’s Court (Magistrates Court jurisdiction) and the Children’s Court of Queensland.

Different sentencing options for juveniles

The Youth Justice Act sets out the penalty options for police officers and Courts dealing with juvenile offenders. These options include the following.

Less serious action:

  • Taking no action – a police officer dealing with a juvenile offender is required to consider taking no action when a minor offence has occurred;
  • Cautioning – a police officer may consider formally cautioning a juvenile offender by giving a verbal explanation. Plus, written notice of the offence to the offender. A caution cannot be given unless the child admits guilt, consents and is in the presence of a parent, guardian or other adult of the child’s choosing. This option is only available for minor offences.
  • Restorative justice process – a police officer or Court can make a referral of the child to the restorative justice process. Again, the child has to consent and, when the referral is made by a police officer, the offence must be considered too serious for a caution. This process requires that the child apologise to the victim. They must make amends in any way deemed appropriate.
  • Drug Diversion – for drug-related offences, both a police officer and the Court can refer a juvenile offender to a drug diversion program. The child must consent to the order and admit guilt.
  • Reprimands – if the offence is serious enough to progress to the Courts, or the child has had a number of cautions but continues to offend, the Court has a number of additional sentencing powers. A reprimand can be given when the child admits or is found guilty. This involves the Courts acknowledging the child’s wrongdoing without providing any further penalty.

More serious action:

  • Community Service Order – a juvenile offender can be placed on a community service order by the Courts if they are 13 years or older. The maximum amount of hours is determined by the child’s age. But, in any case, the minimum is 20 hours.
  • Fine – a Court is able to impose a fine on a juvenile offender if the Court is satisfied that the child, not their parent(s), has the capacity to pay the fine.
  • Probation – with their consent, a juvenile offender can be placed on a probation order. They are then required to be under the supervision of Youth Justice Services for the duration of the order. if it is considered appropriate, Youth Justice can require the child to undertake programs and counselling.
  • Detention – if the offending is considered serious enough, a juvenile offender can be sentenced to a period of detention. This must only be imposed as a last resort. A Court can only make such an order after a pre-sentence report has been requested and provided in relation to the child. They must give written reasons for making an order of detention.

The question remains: will the juvenile offender in this case “get away with murder”?

If you’re needing assistance with legal matters or determining your legal rights, Cridland & Hua are the specialists amongst Brisbane Law Firms, practising exclusively in criminal and quasi-criminal law. Contact us today.

 

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