The Age of Criminal Responsibility (NT)
The age of criminal responsibility is the age that a person can be arrested, summonsed, charged with and found guilty of criminal offences. On 1 August 2023, the NT became the first Australian jurisdiction to raise the age of criminal liability from the previous minimum age of 10. The minimum age of criminal responsibility in the Northern Territory is now 12.
Why the change?
The age of criminal responsibility was raised from 10 to 12 in the NT in response to widespread pressure for the age to be raised across all of Australia. The ‘raise the age’ campaign gained momentum in 2016, when media attention became focussed on human rights abuses in the Don Dale Detention Centre and concern grew about the large number of young children in detention.
Expungement of convictions
In the NT, all convictions against people for offences committed when they were under 12 have now been expunged. This means that these people must be treated as though they had never been charged, found guilty of, or sentenced for those offences.
A person who was convicted of an offence when they were 10 or 11 years of age in the NT can now say under oath that they have never been charged with or convicted of an offence. Their criminal record no longer includes that charge or conviction.
Offence to disclose expunged conviction
It is now an offence to intentionally engage in conduct that results in the disclosure of a charge or conviction that has been expunged if the offender is reckless as to that result. This offence carries a penalty of a fine of 50 penalty units or imprisonment for six months.
What if a child under 12 commits an offence?
Under section 38 of the Criminal Code Act 1983, the age of criminal liability in the NT is now 12. This means that when a child under 12 does an act, it is not regarded as an offence even if the act would amount to an offence if committed by an older person. This is because children under 12 are considered too young to be held criminally responsible for their actions.
If a child under 12 commits a violent act, steals or does some other act that would be an offence if done by an older person, this will be dealt with by parents or teachers. The child may also be provided with counselling to teach them appropriate behaviour.
Defence of ‘immature age’
Although a child who is 12 or 13 can be charged and convicted of an offence in the NT, there is still a presumption that a child under 14 is not criminally responsible for an act. This presumption is contained in section 38A of the Criminal Code Act and is known as the doli incapax (incapable of evil) rule.
Under this rule, a child under 14 is not criminally responsible for an act, unless the court is satisfied that at the time of doing the act, they had the capacity to know they should not do the act. The prosecution bears the burden of proving that the accused child knew the difference between right and wrong and knew that they ought not to do the act.
The doli incapax rule is based on the idea that many children under 14 are insufficiently mature to be held responsible for their acts at law. Although they may know that an act is ‘naughty’, they are not yet capable of understanding that it is seriously wrong and amounts to an offence.
If a child under 14 is charged with an offence, but the prosecution is unable to convince the court that the child had this capacity, the court will find the child not guilty on the basis of ‘immature age.’
If a child over 12 is found to have committed an act and to have had the capacity to understand that they ought not to have done it, they will be found guilty of the offence and sentenced in the Youth Justice Court.
How are juvenile offenders dealt with?
Offenders under 18 in the NT are dealt with by the Youth Justice Court. The Youth Justice Court has the power to impose a range of sentences including fines, community work orders and terms of youth detention. When sentencing a young person, courts must deliver sentences that focus on rehabilitation as a higher priority than other sentencing principles like deterrence and just punishment.
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