There are eight reasons. First,scientific evidence about the cognitive development of children underscores that a child under 14 is unlikely to understand the impact of their actions or criminal proceedings.
Second,children in the criminal justice system have often experienced trauma,abuse and neglect. Children in the child protection system are overrepresented in the youth justice system. They often suffer from developmental delay and intellectual disability;a 2011 study found almost half of young people in detention have borderline or lower intellectual functioning.
Third,research shows that the criminal justice system is criminogenic. Early intervention,prevention and diversion from the system is crucial to giving children the opportunity to change their behaviour and avoid re-offending.
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Fourth,children in NSW are presumed incapable of having the knowledge to be criminally responsible (doli incapax). A child is presumed not to understand the difference between right and seriously wrong;the prosecution must prove otherwise beyond reasonable doubt. Many charges are dropped or dismissed once the maturity and capacity of the child have been examined. However,this is only after the child has undergone the trauma of being charged,often bail refused and,if entered to juvenile custody,strip searched.
Fifth,the Bar Association has analysed BOCSAR data from 2019,revealing that 99.03 per cent of the 207 court disposals for children under 14 were non-custodial. Yet,many were refused bail while awaiting these outcomes. A mere two children received a custodial sentence that year,one for theft and the other a public justice offence.
Sixth,very few children under 14 are charged with,let alone jailed for,serious offences. BOCSAR data between 2015 and 2020 reveals there were no homicide or related offences charged in NSW for children under 14. In 2019,only 0.28 per cent of finalised matters involving children under 14 recorded the most serious charge as a sexual related offence. In 2021,three 10-year-olds were charged with crimes but no charges were proven. There were 293 children aged between 11 and 13 who spenttime in custody because bail was refused,most of them Indigenous,despite outcomes being overwhelmingly non-custodial. These are shocking numbers.