Young offender’s complex needs

Michael was 13 years old and presented with a diagnosis of PTSD resulting from witnessing family violence perpetrated by his father on his mother. He was also an only child and estranged from his father, who himself had a criminal history. Michael was charged with one count of driving unlicensed after taking his mother’s car for a joy ride with friends. The PCLC criminal lawyer arranged a case conference and after much time and effort, the prosecutor was persuaded to withdraw the charge against Michael on the basis that he was criminally incapable, even though he was above the age of minimum criminal responsibility in Victoria. This was because the PCLC lawyer successfully argued that the principle of doli incapax applied in this case. This principle, which applies throughout Australia, assumes that children aged between 10 and 14 years are criminally incapable. Here, evidence was tendered that Michael was intellectually and morally incapable of committing a crime, and the Court struck out the charge on that basis. This left diversion available as an option to Michael, if ever charged with further criminal offences.

Considering reports that in practice the principle of doli incapax is not always applied (2019 Children’s Rights Report), PCLC will continue to advocate to raise the age of criminal responsibility. PCLC views this as critical to ensuring that young people, who often come from disadvantaged backgrounds, can have their complex needs more appropriately dealt with outside the criminal justice system, and thus reduce the risk of re-offending.