Leo* was just 10 years old when he began committing a range of serious offences in New South Wales.
He used a weapon to commit a robbery, smashed a car window and took a joyride in a stolen car. By 11, he was remanded in juvenile detention, facing 72 charges.
In 2023, while lawyers argued in a regional New South Wales court over his fate, court documents say Leo spent most of it sleeping, playing with toys, waiting for his McDonald’s meals, or talking with the youth justice officers accompanying him.
Court documents note that “not much” of the evidence was in dispute – but that’s not what the case turned on. Due to Leo’s young age, his guilt was determined by whether he understood what he had done was criminally wrong, as opposed to just naughty.
His mother submitted a witness statement about how she was struggling to control his behaviour. His older brother was in juvenile detention and his father in prison. She tried to use them as an example to explain the consequences of his actions.
“He just keeps laughing at me, he says ‘I don’t care, they’ll never catch me’,” she said.
The magistrate found Leo did not understand what he had done was criminally wrong because he lacked the capacity to morally reason, and found him not guilty of all 72 offences. But if Leo had gone before the court after a change passed into law on Thursday by the Minns government, which will make it easier to convict children his age, there’s a chance it would be a different story.
Government defies key recommendation
In NSW, the age of criminal responsibility is 10, but a protection known as doli incapax makes it harder to convict children under 14.
Doli incapax recognises children – like Leo – lack the maturity to understand the significance of their actions. The protection means children aged between 10 and 13 can only be convicted of a crime if prosecutors prove they understood what they did was seriously wrong.
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A 2018 high court decision, RP v The Queen, found that courts need to consider factors such as a child’s schooling and home environment to understand if they have the intellectual and moral capacity to understand what they did was wrong.
Since that high court decision, conviction rates of children aged 10 to 13 have plummeted. To many advocates, fewer children in prison has been a good thing, given research shows it only increases the likelihood of future offending. But amid concerns about youth crime, the state Nationals have been pushing the NSW government and the Liberals to support a change to doli incapax – despite 10 to 13-year-olds making up a small portion of offenders.
On Thursday, the government passed a major change to doli incapax, removing the requirement for courts to consider a child’s intellectual and moral capacity if prosecutors can establish the child committed the crime, and certain circumstances – like whether a crime was planned, or whether the alleged offender had a weapon.
Advocates and lawyers have been alarmed by the decision.
“This means that, even if there is evidence that a child accused of an offence is living with an intellectual disability and a background of complex trauma, the court can decide that they should be convicted anyway,” said Lauren Stefanou, the Aboriginal Legal Service’s principal solicitor, who added the change will mostly affect Aboriginal children.
The government claimed its changes followed a key recommendation in an independent review the government commissioned into doli incapax by former supreme court justice Geoffrey Bellew and former NSW police deputy commissioner Jeffrey Loy. It recommended the government legislate the change in line with the high court decision.
But the NSW Bar Association and other advocates say that’s not true because the change allows a court to convict a child “without or despite” considerations of their moral development.
The attorney general, Michael Daley, denied the government was going against the review, saying the “government is adopting the review’s recommendation for doli incapax to be codified in law”.
The government has followed a recommendation to introduce changes to the Young Offenders Act, allowing young people accused of less serious offences to be offered a diversionary pathway instead of facing court.
“These changes are not about locking more children up. The aim here is to facilitate an informed, evidence-based hearing before the courts,” he said.
‘Sliding doors moment’
Leo was found not guilty on the basis of his moral development, despite little disputed evidence he committed the crimes. If a case similar to his went before the court after Thursday’s changes, that child would be at greater risk of being convicted.
A local police officer gave evidence during Leo’s hearing, saying she first met him while conducting a bail check on his brother. Leo told her during the visit “my brother did bad things”. She found him a happy, normal, friendly 10-year-old who “says hello”. But then his behaviour changed.
His mother gave evidence that, when he spoke on the phone to his brother, who has been in and out of juvenile detention since he was 12 years old, his brother told him “you don’t want to come in here” but Leo responded laughing.
“I told him … you’re going to be in and out of gaol [sic] the whole of your life … he looked at me and smiled,” she said in her statement.
The magistrate noted that Leo had been exposed to a range of unlawful conduct, which could mean such behaviour had become normalised for him and he may not appreciate the “moral wrongness” of the conduct he “imitates”.
“[Leo’s] moral development has not reached the fearing of punishment stage. Conversely, [Leo] appears to regard intended punishment as a reward,” she wrote.
Associate prof John Kasinathan, a University of NSW expert in adolescent forensic psychiatry, described the court hearing it as a “sliding doors moment” for Leo: “If you incarcerate children earlier, that’s been shown to result in longer or more severe criminal trajectories.
“The only interventions that work in this age group are health-led interventions.”
Court documents do not reveal if Leo accessed any health interventions, such as behaviour or psychosocial support.
Kasinathan and David Heilpern, dean of law at Southern Cross University, acknowledge a challenge with doli incapax is that, once charges are dismissed, a court cannot mandate diversions which might otherwise address the root causes of offending.
The NSW premier, Chris Minns, told reporters last week this was one of the issues the government was seeking to fix.
“The reason we’ve made these changes is that … We’ve got a situation now where 85% people under the age of 14 are going to court and having no finding at all. Now no finding means no therapeutic intervention, no counselling services, no support from charities, no Indigenous-led organisations to come in and help. Nothing, just literally crime, arrest, release. Crime, arrest, release.”
However, Heilpern said: “You don’t intervene with young people by increasing their criminality.
“That’s not a proven, evidence-based approach. And of course, that’s what their own [report] didn’t recommend doing.”
The report recommended more “voluntary” support for young people that fall into this gap, noting the criminal justice system isn’t the “the most suitable or effective” mechanism for addressing the underlying causes of crime.
When Heilpern was a magistrate in northern NSW from 1998 to 2020, he found it “enormously frustrating and sad” when he saw the same children come before him time and time again, knowing they had not got access to services which might help curb their offending.
“It costs about $1m a year to lock up a young person,” he said. “And of course, at the back of your mind, if you’re refusing bail or sentencing young people to detention, is: ‘What if this young person had access to half that in terms of support services?’.”
* not his real name
