Recent reports indicate that incidences of sexual abuse perpetrated on children by other children are increasing. Possible reasons for this include influence from the home environment of the perpetrating child and increased access to explicit or pornographic material made possible by technology and the internet.
Child sex offenders are of serious concern for a number of reasons. A young child sex offender may not have the capacity to appreciate the gravity of the act they have committed. Also, a child sex offender may be imitating physical acts done to them. This kind of offence in effect results in two victims due to the fact a perpetrator may be unaware of what exactly they have done as well as of course there being a victim of sexual abuse.
Where a child is accused of a sexual offence against another child and proceedings are initiated against the child sex offender, the court processes that follow will be extremely difficult for all involved. Courts take such proceedings just as serious as if the perpetrator was an adult and it is vital to the interests of a defendant that they are legally represented to the best standard possible. If your child is accused of sexual abuse against another child it is vital they are represented by an experienced defence lawyer.
The task of a criminal defence lawyer is to test the evidence being relied on by the prosecution in prosecuting an accused person as well as ensure their clients interests are protected as much as possible. The procedure of criminal law in Australia requires that where a person is accused of an offence, it is proved beyond a reasonable doubt by the prosecution that the accused person not only committed the offence but also intended to commit the offence. These requirements are especially significant in cases where the accused person is under the age of 18.
An experienced criminal defence lawyer will be able to test whether the evidence being used in a case proves beyond a reasonable doubt that an accused person committed an offence. It is very well known that children can be unreliable witnesses and so if your child has been accused of an offence by another child, an experienced criminal defence lawyer will ensure that any unreliable evidence is tested properly.
There are numerous aspects to every criminal case that require professional consideration to ensure there is no miscarriage of justice.
In New South Wales the Children (Criminal Proceedings Act) 1987 provides that a child under the age of 10 is incapable of committing a criminal offence. The law takes the view that this is a conclusive principle and a child under 10 cannot be prosecuted for an offence.
For children aged between 10 and 14 years a rebuttable presumption known as Doli Incapax operates in all jurisdictions. This principle provides that, whilst the child may have committed the physical act of the offence, the child is unable to have the mental capacity to form the requisite state of mind to be guilty of an offence by way of their age.
This does not however preclude an accused child in this age bracket from prosecution. If the prosecution is able to prove beyond a reasonable doubt that a child above the age of 10 and under the age of 14 years has physically committed an offence and knew the conduct in question was wrong, then they may be found guilty of an offence. Wrongful behavior in this situation is distinguished from mere naughtiness or childish mischief: see R v M (1997) 16 SASR 589. If the prosecution cannot prove the offender knew the conduct was wrong, then the case cannot proceed.
Child sex offenders aged between 14 and 18 may be held fully responsible for their acts however there exists different sanctions or sentencing options to those for adult perpetrators.
Generally, criminal matters involving child perpetrators are heard in the Children's Court and the Children (Criminal Proceedings) Act 1987 governs the jurisdiction of the court. A child is defined as a person under the age of 18 years. However, “serious children's indictable offences”, that is, the most serious offences, are dealt with in the higher courts. In this situation the offender may have their matter heard in the Local or District Court where harsher penalties are available to the judge in sentencing.
The Children's Court has the ability to impose a wide range of sentences. These include:
- dismissal of the charge
- a good behaviour bond
- a fine
- an order adjourning proceedings
- a probation order and a community service order
- a control order
- a suspended sentence and
- a compensation order.
The Court may also make an order, among others, conditional upon compliance with a program known as the Sex Offenders Program.
Section 6 of the Children (Criminal Proceedings Act) provides for a number of principles which a court is to take into account in the prosecution of a child offender. Among others, these principles provide that 'It is desirable, wherever possible, to allow a child to reside in his or her own home and '...wherever possible, to allow the education or employment of a child to proceed without interruption'. The law provides that due regard is to be paid to these principles.
If your child has been accused of committing a child sex offence it is essential an experienced criminal defence lawyer is able to ensure your child’s interests are looked after as best as possible.
For further information, please contact us on (02) 9261 8640 or email at email@example.com. We are conveniently located within a short walk of the Downing Centre.