An independent review of the operation of doli incapax in New South Wales (NSW) for children under 14. Doli incapax operates as a common law presumption in NSW and presumes children aged between 10 and 13 are not able to be held criminally responsible for their actions. The report makes seven recommendations.

Youth crime is a justifiable concern for many communities in NSW. That said, statistical data indicates that most police-initiated legal proceedings against young people are directed towards 14–17 year olds, rather than 10–13 year olds.

The report finds that a small proportion of 10–13-year-olds engage in serious or persistent offending and, without the benefit of rehabilitation efforts or supervision, there is too often repeat offending. Currently, many at-risk young people receive no intervention or support at an early stage when offending is less serious.

The review highlighted that there is a need for additional training to address a number of issues with the current operation of doli incapax in NSW.

Key recommendations

• An option for introducing a new legislative framework for enacting the presumption of doli incapax in NSW.
• Giving NSW Police another tool in their kit by expanding access to diversion pathways for 10-13-year-olds. For less serious offending, a child would become eligible for a caution or Youth Justice Conference by ‘not denying’ the offence rather than needing to ‘admit’ to the offending.