Steep decline in convictions for young people after High Court ruling

Link to Report Summary: 

Release date: Thursday 8 May 2025

A new study by the NSW Bureau of Crime Statistics and Research (BOCSAR) has found a significant decline in the number of young people aged 10 to 13 years found guilty of a criminal offence in NSW, following a landmark High Court of Australia decision in 2016. The decision in the case of RP v R clarified the application of the legal principle of doli incapax, which presumes that children under 14 years are incapable of criminal responsibility unless proven otherwise.

Key Findings:

  • The proportion of 10-13 year olds with a proven outcome in the NSW Children’s Court fell dramatically from 76% in 2015-16 to 16% in 2022-23.
  • Over the same period, the volume of 10-13 year olds charged by police has been mostly stable.
  • The decline in proven outcomes was accompanied by an increase in cases where all charges are withdrawn by the prosecution, rising from 12% in 2015-16 to 53% in 2022-23.
  • There has also been a notable decline in guilty pleas among this age group, falling from 54% in 2015-16 to 14% in 2022-23.
  • Similar trends have been observed in Victoria and South Australia, indicating a national impact of the RP decision. The proportion of 10-13 year olds with a proven outcome fell from 75% in 2015-16 to 7% in 2022-23 in Victoria and from 41% to 8% in South Australia.

Background:

The High Court's 2016 decision in RP v R clarified that to rebut the presumption of doli incapax, the prosecution must prove that the child understood their actions were seriously wrong, not merely naughty. The judgement requires prosecutors to provide proof beyond merely showing that the child committed the offence, and that the offence was “obviously wrong”.

Implications:

The findings highlight that, despite the formal age of criminal responsibility remaining at 10 years, it is now very uncommon for a child aged under 14 to be found guilty of a crime in NSW.

Commenting on the findings BOCSAR Executive Director, Jackie Fitzgerald, said that the High Court decision appears to have made it more difficult to convict younger children, leading to a notable decline in proven outcomes for children aged under 14 years. “The trend is most evident in States such as NSW, Victoria and South Australia, which rely on a common law understanding of doli incapax. States which have defined doli incapax in legislation, such as Queensland, Western Australia and Tasmania, have not shown a similar decline”.

“The result raises questions about how best to support vulnerable young people who participate in crime at an early age in order to reduce future harm to themself and the community. Many young offenders desist from criminal behaviour of their own accord and require minimal intervention. However, a small number of very young people engage in serious crimes and can continue offending through adolescence and into adulthood. It is important that these individuals receive appropriate interventions, either within the justice system or outside it, to reduce criminal involvement and improve their long-term outcomes” Jackie says.

For comment please contact:

Jackie Fitzgerald, Executive Director, NSW Bureau of Crime Statistics & Research.

Phone: +61 423 139 687
Email: jackie.fitzgerald@dcj.nsw.gov.au
Copies of the report: www.bocsar.nsw.gov.au 

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