New Zealand Law Students Journal
Last Updated: 27 May 2014
WHEN CHILDREN KILL:
THE AGE OF CRIMINAL RESPONSIBILITY AND CRIMINAL PROCEDURE IN NEW ZEALAND
Alex is 11 years old.1 In New Zealand, Alex is too young to vote,
to smoke, to have sexual relations and to be prosecuted for most criminal
offences. 2 Most criminal offences, that is, except for the
homicide offences of murder and manslaughter.3 Under New Zealand
law, Alex can be arrested on suspicion of homicide, and tried and sentenced
in the High Court.4
We see that by law, children are considered to be incapable of making their
own decisions such as whether to drink or smoke. By not
under the criminal justice system, the law protects them from the consequences
of their decisions. Nonetheless,
children are to be held accountable for the
dire consequences of their actions in relation to homicide offences. It seems
and paradoxical that children are tried and punished as adults when
the law and society has clearly indicated that they are not to
be judged as
Keeping this in mind, this article will focus on two main issues. The first issue is the age of criminal responsibility. This article argues that the age of criminal responsibility in New Zealand, 10 years of age, is too low, and that New Zealand should raise the age to 12. As will be discussed, this is to align New Zealand law with that of our international and national obligations, other legal provisions, and developmental research on the nature of children.
* LLB(Hons)/BA (in progress), The University of Auckland.
1 Fictitious story.
3 Children, Young Persons, and Their Families Act 1989 [“CYPF Act”], s
4 CYPF Act 1989, s 272.
The second issue concerns the prosecution process when dealing with children
who kill. The current process tries and sentences children
in adult courts.
This article will argue that children should be handled entirely by the
youth justice system via the New
Zealand Youth Court. In short, the argument is
that New Zealand can do better and should do better with regard to provisions
dealing with children who kill. Also, it is to be noted that this article
will focus purely on the homicide offences of murder and
and the child6 offender. That is, a child aged between 10 and
1. History: children are treated differently in law
There exists in most people an intuitive feeling that children are not
deserving of criminal punishment in the same way as adults.
Children lack the
same level of physical, intellectual, emotional and social development as
adults. Many would thus say that it would
be unfair to subject children to the
harsh sanctions that the criminal justice system hands out. This concept of
punishment, and hence different treatment of young
offenders and adults under the criminal law, stems from common law
At common law, children under 14 years were presumed not to possess the
criminal intent necessary to commit a crime. 8 However, once
between the ages of 7 and 14, this presumption could be rebutted if proven
that the child could distinguish between
right and wrong and so understand the
illegality of his or her act.9 Past the age of 14, a
5 Infanticide as defined by s 178 of the Crimes Act 1961 [“Crimes Act”] also constitutes culpable homicide.
6 The CYPF Act defines a ‘‘child’’ as a boy or girl under the age of 14 years and a ‘‘young person’’ as a boy or girl of or over the age of 14 years but under 17 years, s 2.
7 Charles Polen “Youth on Death Row: Waiver of Juvenile Court Jurisdiction
and Imposition of the Death Penalty on Juvenile Offenders” (1986) 13
KYLR 495 [“Death Row”] at 496.
8 Frederick Woodbridge “Physical and Mental Infancy in the Criminal Law” (1939) 87 UPA L Rev 426 at 428–438.
9 At 430.
was considered an adult for the purposes of the law and held to have the
capacity to form the requisite criminal intent.10
As society began to recognise that the adult criminal justice system was not
the most appropriate forum for dealing with child
and youth offending,
separate court systems in the form of family and youth courts11
emerged in the latter part of the nineteenth century.12
2. Setting the scene: New Zealand statistics
In New Zealand, the phrase “child offender” brings to mind a few prominent cases. One widely publicised case is that of Bailey Junior Kurariki. Touted as New Zealand’s “youngest killer”13 in numerous newspaper articles, Kurariki was only 12 years old when he was implicated in the killing of pizza deliveryman Michael Choy in 2001.14
He was convicted of manslaughter and jailed for seven years.15 More
recently in 2010, a 12 year old boy pleaded guilty to a charge of
manslaughter for shooting an 11 year old boy after telling the
that he would shoot him if he got “cheeky”16
(the “2010 rifle case”). The boy, who was also given name
suppression, was sentenced to 20 months in the youth justice
Newspapers have reported, “[n]umerous children have been convicted of
manslaughter, but only a few of murder.”18 Since 1977, there
10 At 434.
11 Youth courts are also known as juvenile courts.
12 Charles Thomas and Shay Bilckih “Prosecuting Juveniles in Criminal Courts: A Legal and Empirical Analysis” (1985) 76 J Crim Law & Criminology 439 at 448–449.
13 NZPA “NZ’s youngest killer up for parole” The New Zealand Herald (New
Zealand, 5 March 2008).
14 R v Rapira  NZCA 318.
15 At 114.
16 Nicola Brennan “Boy pleads guilty to killing” The Waikato Times (New
Zealand, 26 October 2010).
17 NZPA “Young killer jailed for 20 months” The New Zealand Herald (New
Zealand, 7 December 2010).
18 Brennan, above n 16.
been less than ten 10 to 13 year olds convicted of manslaughter and only
one 13 year old convicted of murder.19
Despite the numbers of children involved in homicide offences being very
small, it is nonetheless interesting to see what laws New
Zealand has for
dealing with children who kill.
3. The New Zealand youth justice process: from apprehension to
In New Zealand, criminal liability is set out in the Crimes Act 1961 (“Crimes Act”). Section 21 of the Crimes Act establishes that no criminal prosecution can be brought against a child under the age of
10,20 making 10 the starting point for criminal responsibility
in New Zealand. Prior to the Children, Young Persons and Their
(Youth Court Jurisdiction and Orders) Amendment Act 2010 (“CYPF Amendment
Act”),21 a child offender could not be prosecuted for any
offence other than murder and manslaughter. In non-homicide cases, the child
dealt with under the care and protection provisions of the Children, Young
Persons and Their Families Act 1989 (“CYPF Act”),
as opposed to the
youth justice provisions. In short, the majority of children cannot be
criminalised. With regard to homicide
offences, in addition to proving that
the child has the requisite mens rea22 for the offence, the
prosecution must also prove the child knew what he did was wrong or contrary to
law.23 This provision reflects the common law
19 Replies to the list of Issues to be taken up in connection with the consideration of the Fifth Periodic Report of New Zealand: New Zealand Government Response (CCPR/C/NZL/5) UN ICCPR (2010) [“New Zealand Government Response”] at 26.
20 Crimes Act 1961, s 21.
21 The Children, Young Persons, and Their Families (Youth Court Jurisdiction and Orders) Amendment Act 2010 [“CYPF Amendment Act”] allows children aged 12 and 13 to be prosecuted for serious or persistent offending. Many of my arguments will be evidence against this amendment. However, as the focus of my paper is on murder and manslaughter only, both of which are classified as purely indictable offences (more serious than “serious offences”), I will not be discussing the CYPF Amendment Act in any great detail.
22 Latin, “criminal intent”.
23 Crimes Act 1961, s 22.
doctrine of doli incapax, which presumes that a child is incapable of
committing a crime because of lack of understanding. Doli
incapax operates as a
The procedure for dealing with children is set out and governed by the CYPF
Act. The preliminary hearing of a child offender apprehended
on suspicion of
homicide takes place in the Youth Court.24 Subsequently, if the judge
decides there is sufficient evidence, the trial and sentencing occurs in an
adult court (the High Court).25 The child offender does not have the
option to be heard or sentenced in the Youth Court. If found guilty, the child
be detained in a Child, Youth and Family youth justice
4. What makes murder and manslaughter different?
As discussed earlier, children are presumed to be unable to appreciate the
real nature of their criminal offending and are shielded
consequences of such offending, except in the case of murder and
The question then becomes: “what makes murder and manslaughter
different from other offences?” It is irrefutable that
the notion of the
sanctity of life predates any formal legal system. Thus the obvious
answer would be that by taking away
life, homicide is the most serious crime
one can commit. It can also be said that the idea that serious crime ought to
severely regardless of the offender's age very much still exists
in modern day.27 Retributive principles, such as the
24 The Youth Court is a criminal Court that is part of the District Court. It deals with young persons aged 14 to 16 years. The CYPF Act 1989, s 272 sets out that the Court does not hear murder and manslaughter charges, as well as some minor traffic offences.
25 The CYPF Act 1989, s 272(2)(b) states that children are to be tried “as if [they] were a young person”. Section 274 of the CYPF Act sets out that young persons are to be tried as adults in accordance with the Summary Proceedings Act 1957.
26 The child offender will be taken under the custody for the Chief Executive
of the Ministry of Social Development.
27 Franklin Zimring Confronting Youth Crime: Report of the
Twentieth Century Fund Task Force on Sentencing Policy Toward Young
Offenders (Holmes & Meier Publishers Inc., New York, 1978) at
notion of “a life for a life”, can be seen in the literature on
child offending.28 Many a time, it boils down to the fact that
homicide is a horrible crime that leaves devastation in its path, so the fact
the offender is legally a child often does little to affect how the victim
or community believes the offender should be punished.29
B. The First Issue: The Age of Criminal Responsibility
1. What is “the age of criminal responsibility”?
The age of criminal responsibility refers to the age at which a person becomes subject to the full penalties provided by the criminal law.30
Children under this age are immune from criminal prosecution and are
considered doli incapax. Children above this age, however, are
subject to all
the provisions of the criminal law in the same way as
One of the most striking aspects when examining the age of criminal responsibility is the disparity of ages set by different countries as their age of criminal responsibility. Although New Zealand, Australia and the United Kingdom have all set the age of criminal responsibility at 10,32 there is a range of ages set in other countries. For example, Belgium sets it at 18 years of age, Spain at 16, Germany at 14, and Canada at
This inconsistency highlights the difficulty in determining
an appropriate age, and indeed the arbitrary
nature of the
28 Ernest van den Haag Punishing Criminals: Concerning a Very Old and Painful
Question (Basic Books, New York, 1975) at 174.
29 Human Rights Watch “When I Die, They’ll Send Me Home” Youth Sentence to Life without Parole in California (2008) at 3.
30 Barry Goldson “Counterblast: Difficult to Understand or Defend”: A Reasoned Case for Raising the Age of Criminal Responsibility” (2009) 48
The Howard Journal or Criminal Justice 514 at 515.
31 Sentencing options may differ.
32 Australia and the United Kingdom also remove homicide offences from the jurisdiction of the Children’s Courts.
33 UNICEF NZ “Young and Accountable? (2): Should New
Zealand Lower the Age of Criminal Responsibility?” (Background
UNICEF NZ position summary paper “Young and Accountable? (1)”,
2008) at 17.
Naturally, any legal threshold that suddenly regards a child as being
capable of criminal responsibility upon the “dawning
of a birthday”
is “inherently artificial and arbitrary”.34 Children
cannot reasonably be said to promptly acquire the necessary intellectual,
emotional and social maturity on their 10th,
12th or 16th birthday as set out by
In spite of this, such an age is a necessary legal fiction.36
It enables society to recognise that, below a certain age, a child does
not have the capacity to take responsibility for the illegality
of his or
her actions, while, above this age, people can be held criminally liable for
However, a problem arises when the arbitrary and artificial nature of the
concept is forgotten,37 as it acts as a barrier against law reform.
This article seeks to challenge the notion of the age of criminal responsibility
static and unchangeable concept.
2. Two elements of criminal responsibility
The concept of criminal responsibility itself can be broken into two
components: “criminal culpability” and “adjudicative
3. The first element: criminal culpability
(a) What is “criminal culpability”?
Criminal culpability, or lack thereof, is the basis for immunity from
criminal prosecution for children under
the age of criminal
responsibility and refers to their criminal capacity.38 In New
Zealand, children between 10 and 13 years have limited accountability: they are
not accountable for any criminal offences
other than murder and
34 Sarah Kuper “An Immature Step Backward for New Zealand’s Youth Justice System? A Discussion of the Age of Criminal Responsibility” (LLB (Hons) Dissertation, University of Otago, 2010) at 4.
35 At 4.
36 At 4.
37 At 5.
38 At 3.
(b) Doli incapax and the implications for child offenders
Before a case reaches any court of law, the child must be acknowledged to
have the capacity to commit the offence and not be doli
incapax. As mentioned,
the historical international common law doctrine of doli incapax presumes
that children are “incapable
of committing an evil act” and
thus cannot be held criminally responsible for their
behaviour.39 The motivation for the doli incapax presumption is an
example of the law’s method of dealing with the tension between two of
its functions. The first is the law’s protective function
over vulnerable children, and the second is its drive
to control when a child
performs the actus reus40 of a crime. In New Zealand, for
children under 10 years of age, the law’s desire to protect is clear. This
children is regarded as incapable of evil, so the fact of their age
acts as a complete “bar to conviction” (as opposed
“defence”).41 It recognises the “fundamental nature
of childhood” and that children are “not naturally equipped with an
to understand the wrongfulness of criminal
However, by satisfying s 22 of the Crimes Act—that the child knew “the act or omission was wrong or that it was contrary to law”43—the doli incapax presumption, that applies to a child between 10 and 13 years old, can be rebutted. This is arguably easy to do. For example, in the “2010 rifle case”, Justice Forrest Miller held that it was appropriate to convict the 13 year old boy because he knew right from wrong.44
Hence, although the doli incapax doctrine provides some flexibility
against the arbitrary age of criminal responsibility45 and
does act as a
39 Raymond Arthur Young Offenders and the Law (Taylor & Francis, Hoboken,
2010) at 43.
40 Latin, "criminal act."
41 David Brown, David Farrier, David Neal, and David Weisbrot Criminal
Laws (1st ed, Federation Press, Sydney, 1990) at 669.
42 Thomas Crofts “Doli Incapax: Why Children Deserve its Protection” (2003) 10(3) Murdoch University Electronic Journal of Law at 9.
43 Crimes Act 1961, s 22(b).
44 Andrew Koubaridis “Killer, 12 – father’s cover-up” The New Zealand Herald
(New Zealand, 27 October 2010).
45 The presumption allows the Court to consider the
individual child’s capacity in the difficult “in between
years”. See Principal Youth Court
safety provision against criminalising children, the protection afforded is
Rhonda Thompson, in her thesis, “Old Enough To Know Better: The Doli
Incapax Presumption In New Zealand Law”, agrees that
the knowledge of
wrongfulness component of the doli incapax doctrine is too narrow and hence too
easily proved.46 Thompson comments, “[i]t is probably fair to
say that in the majority of child offending cases, the child was about to
that their behavior was wrong.”47 However, a
child’s immaturity goes to whether he or she acted with rational
agency. 48 That is, understanding the nature,
circumstances, and consequences of their actions and to be able to control
As such, Thompson suggests that a better test would take into account
Finlay J’s dissent in R v Brooks:50
[A person’s] idiosyncrasies, his strengths, and his weaknesses ...
must be made the subject of inquiry, for only so can the
degree of his
understanding and comprehension and so of his knowledge, be fairly and
(c) Developmental Research and Studies
There have been many developmental psychology studies and a great deal of
neuroscience research on the cognitive and
psychosocial influences of
juvenile behaviour. These provide the scientific backing to the gut feeling that
children are too immature
to understand the real nature of their
offending. Importantly, these studies testify to the
Conference on the Rehabilitation of Youth Offenders “A New Zealand Perspective”, Singapore, 2007) [“Putting Youth Justice Under the Microscope”].
46 Rhonda Elizabeth Thompson “Old Enough To Know Better: The Doli
Incapax Presumption In New Zealand Law” (LLM Dissertation, Victoria
University of Wellington, 2009) at 2.
47 At 68.
48 At 68.
49 At 9.
50 R v Brooks  NZPoliceLawRp 19;  NZLR 584 (CA) at 602.
limited moral culpability of child offenders, as well as their amenability to
rehabilitation and treatment.
It can be argued that the separate system of dealing with child
offenders, the youth justice system, is established on
the notion that the law
should not expect that persons whose brains are not fully
developed to be fully capable
or to be the recipient of
adult punishment.51 In Roper v Simmons, the United
States’ Supreme Court used numerous scientific research and
sociological studies to justify a finding
that capital punishment of youth
offenders under 18 years old was “cruel and unusual
punishment” and violated
the Eighth Amendment. 52 Due
to “anatomically underdeveloped nature of the juvenile
brain”,53 children lack the “general character required
to stand trial and be sentenced as an adult.54 The studies relied on
by the Court show that “psychosocial maturity is incomplete until age
The New Zealand Court of Appeal also recognizes this developmental
immaturity, expressing in R v Slade that “it is widely accepted
that adolescents do not possess either the same developmental level of
cognitive or psychological
maturity as adults.”56 This
statement reveals the “integral connection between the developmental
immaturity of [children] and their level of
The development of a child’s brain has substantial implications
in respect of the child’s commission of crime.
For example, the Court in
Roper highlighted traits such as the lack of responsibility,
51 Kuper, above n 34, at 17.
52 Roper v Simmons 542 US (2005), at 578–579.
53 Brief of American Medical Association et al. as Amici Curiae in Support of Respondent, Roper USSC 2017; , 543 U.S. 551 (No. 03-633), 2004 WL 1633549 [“AMA Brief”] at 9; Brief for American Psychological Association & Missouri Psychological Association as Amici Curiae Supporting Respondent, Roper,
 USSC 2017; 543 U.S. 551 (No. 03-633), 2004 WL 1636447 [“APA Brief”] at 7–10.
54 Roper v Simmons, above n 53, at 578-579.
55 AMA Brief, above n 53, at 9; APA Brief, above n 53, at 2, 7.
56 R v Slade  NZCA 19;  2 NZLR 526 at 533.
57 Kuper, above n 34, at 29.
ill-considered actions and decisions”58 and a greater
susceptibility to peer pressure59 as being large drivers of youth
Other situational factors also tend to be fertile ground for child
offending to occur, like the seemingly immediate
offending with few obvious or immediate costs, and a lack of adult
These observations may be seen in the facts surrounding Bailey Junior
Kurariki’s conviction. Although premeditated
and thus not
an impulsive crime, Kurariki was the youngest member of an older group of at
least 7 teenagers ranging from
15 to 20 years old. 61 The extent
that situational factors and peer pressure may have played in his
offending is undeniably worthy of attention.
These findings are further aggravated by predisposed intellectual disabilities and learning disabilities of the child, as well as external factors such as an unhealthy family environment, abuse or neglect.62
Thus, it has been said that a juvenile’s susceptibility
to acting irresponsibly means “their irresponsible
conduct is not as
morally reprehensible as that of an adult” 63 and
“it is less supportable to conclude that even a heinous crime
committed by a juvenile is evidence of irretrievably
character”.64 These factors indicate that the law should
be more receptive to forgiving children for their actions than it would
adults, and following from this, that children should not be treated like
58 Roper v Simmons, above n 53, at 569.
59 At 569.
60 Laurence Steinberg “Should the Science of Adolescent Brain Development
Inform Public Policy?” (2009) 64 The American Psychologist 739 at 741.
61 R v Rapira, above n 14.
62 Kuper, above n 34, at 32.
63 Roper v Simmons, above n 53, at 570.
64 At 570–571.
(d) International and national obligations
By ratifying the United Nations Convention on the Rights of the Child (“UNCROC”)65 in 1993, New Zealand exemplified a commitment to ensure that certain rights are afforded to all children.66 Under the UNCROC, State Parties agree to adapt the law, judicial procedures, authorities and institutions to suit children’s abilities and needs when dealing with child offenders.67 In particular, art40(3)(a) requires State Parties to establish a minimum age below which children shall be presumed not to have capacity to infringe the criminal law. That is, of course, a minimum age of criminal responsibility. The philosophy behind doing so can be found in the official commentary to the United Nations’ Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules”) which states:68
The modern approach would be to consider whether a child can live up
to the moral and psychological components of criminal
is, whether a child, by virtue of her or his individual discernment and
understanding, can be held responsible
for essentially antisocial behaviour.
If the age of criminal responsibility is fixed too low or if there is no lower
at all, the notion of responsibility would become meaningless.
Expounding on this, Rule 4.1 of the Beijing Rules
In those legal systems recognizing the concept of the age of criminal
responsibility for juveniles, the beginning of that age
65 United Nations Convention on the Rights of the Child, GA Res 44/25, UN GAOR, 44th Sess, Supp No. 49, UN Doc A/44/49 (1989) [“UNCROC”].
66 Defines children as young persons below 18 years of age.
67 UNCROC, art 40.
68 United Nations Standard Minimum Rules for the Administration of Juvenile Justice, GA Res 40/33, UN GAOR, Supp No 53, UN Doc A/40/53 (1985) [“Beijing Rules”] at 3. See also Attorney-General Legal Advice on the consistency of the Young Offenders (Serious Crimes) Bill 2006 with the NZBORA 1990 (Ministry of Justice, 2006).
69 Beijing Rules, r 4.1 at 3.
shall not be fixed at too low an age level, bearing in mind the facts of
emotional, mental and intellectual maturity.
Although neither the UNCROC nor the Beijing Rules stipulate any particular
minimum age of criminal responsibility that should be set,
the United Nations
Committee on the Rights of the Child (“UN Committee”)
responsible for monitoring
compliance with the international instruments
has criticised jurisdictions that have set the age below 12 years.70
In their 2003 report on New Zealand, the UN Committee commented that
the age of criminal responsibility in New Zealand at 10
was too low. It
recommended that New Zealand “raise the age of criminal responsibility
to an internationally acceptable
age and ensure that it applies to all
On the national level, s 25 of the New Zealand Bill of Rights Act 1989
(“NZBORA”) states that in relation to the
for criminal procedure, when charged with an offence, the child has the
right to “be dealt with in
a manner that takes account of the
child’s age”.72Further to this, s 9 of the NZBORA affirms
the right not to be subjected to “disproportionately severe treatment or
However, in T v UK, 74 the European Court of Human Rights (“ECHR”) did not find the equivalent provision of the latter right to be infringed.75 The question for the Court was whether the attribution of criminal responsibility to a child as young as 10 years old violated the right not to be subjected to disproportionately severe treatment or punishment. The Court held that the minimum age of criminal responsibility in England and Wales at 10 years did not deviate so far
70 Justice Children and Homicide – Appropriate procedures for juveniles in murder and manslaughter cases (Justice, London, 1996) at 7, quoted in Gregor Urbas The Age of Criminal Responsibility (Trends and Issues in Crime and Criminal Justice, No 181, Australian Institute of Criminology, 2000) at 2.
71 United Nations Committee on the Rights of the Child (past session,
concluding observations on New Zealand), CRC/C/15/Add.216.
72 New Zealand Bill of Rights Act 1990, s 25(i).
73 Section 9.
74 T v United Kingdom  ECHR 171; (2000) 30 EHRR 121 (ECHR).
75 Attorney-General Legal Advice on the consistency of the Young Offenders (Serious
Crimes) Bill 2006 with the NZBORA 1990 (Ministry of Justice,
from European practices as to violate the relevant human rights
standards. This allowed Robert Thompson and Jon Venables,
who were both 10 years
old at the time of the offence, to be tried and convicted for the murder of
then two year old James
Bulger. The Attorney- General used this case
as evidence that the provision in the Young Offenders (Serious Crimes)
Bill 2006,76 which allowed the minimum age of criminal
responsibility to be reduced to 10 years of age for all offences, did not
9 of the NZBORA.
4. The second element: adjudicative competence
In her article “In the Frame: Crime and the Limits of
Representation”, Alison Young discusses representations of
as seen in the James Bulger case. 77 Bulger was portrayed
as “small, affectionate, dependent, vulnerable [and]
high-spirited”. 78 This correspondence between his
child-like appearance and typically child-like nature meant he was “an
allegory of the innocence
of childhood”.79 In contrast, by
their acts of violence, there was a lack of correspondence with
Thompson and Venables’ actions
and the child-like behaviour expected of
children their age. The effect of this was that:80
Venables and Thompson, despite their appearance of childhood, could
not “really” be children ... James Bulger's
status as child was
therefore elevated, while Venables and Thompson were subjected to
strategies which undercut their childlike
appearances, treating them more
like adults in disguise. Thus, they were tried in Preston Crown Court as if
they were adults.
This section discusses the implications of trying children as adults and
concludes that it should be avoided, regardless of the severity
committed, as children are not have sufficient adjudicative competence to have a
76 One of the main aims of the Bill was to lower the age of criminal responsibility for all offences to 10 years. The bill was negatived in its second reading.
77 Alison Young (1996) “In the Frame: Crime and the Limits of
Representation” 29 ANZJ Crim 81.
78 At 83.
79 At 84.
80 At 84–85.
(a) The problems with trying children as adults
Adjudicative competence refers to the ability of a defendant to stand
trial having “sufficient present ability to consult
with his lawyer with a
reasonable degree of rational understanding—and whether he has a
rational as well as factual
understanding of the proceedings against
him.”81 In rehabilitation and welfare-based youth courts,
competency to stand trial is deemed “conceptually irrelevant” as the
court’s focus is on helping the young offender get back onto the straight
and narrow path. Wherein such courts a “defence”
per se is
unnecessary,82 this is not so in adult courts which are established
on principles of retributive justice, punishment and public safety. In
often-adversarial settings, a young vulnerable child may find him or
herself to be incompetent and thus greatly disadvantaged.83 It has
been said that:84
The immaturity that leads children to commit crimes in the first place leaves
them ill-prepared to navigate the criminal justice
they’re more likely than adults to receive the heaviest sentence.
Research shows that the reduced capability of children and youths in
foreseeing the consequences of their decisions is especially
regard to pleading decisions.85 For instance, interviews reveal that
some child or youth offenders “didn’t understand the plea
81 Dusky v United States  USSC 51; (1960) 362 US 402 at 402.
82 Thomas Grisso “Juvenile Competency to Stand Trial: Questions in an Era of Punitive Reform” (1997) 12 Am Bar Assoc Criminal Justice Magazine 3, at 6.
83 Grisso, above n 82, at 6.
84 Human Rights Watch “California: Repeal Law Jailing Children for Life.
Senate Should End ‘Life Without Parole’ for Juvenile Offenders” (2008)
<http://www.hrw.org/news/2008/01/13/california-repeal-law-jailing- children-life> .
85 Regarding plea decisions, preadolescents are less likely than older
adolescents to think strategically Michele Peterson-Badali & Rona
Abramovitch (1993) “Grade Relating Changes
People’s Reasoning About Plea Bargains” 17 Law & Human Behaviour
system, for instance, so they’d reject a 15-year sentence as being
too long and then end up with life.”86
Furthermore, there is a whole body of research dedicated to showing that
children are not fit to stand trial as adults. For example,
when tests assessing
adult proficiency were administered to youths, only one-fifth under the age of
13 and only half of youths aged
13 were found competent.87
Additionally, in an American government funded study investigating the
ability of youths in a juvenile detention facility to comprehend
rights,88 it was discovered that youths between 14 to 16 years old
believed the “right to remain silent” meant that “you
silent unless you are told to talk”.89
The New Zealand youth justice system is unique in that its main focus is to
hold child and youth offenders accountable for their actions:
it is premised on
criminal justice principles and not “welfarising the
response”.90 That is, they are held responsible for their
actions via due process and legal representation, where judges are
give reasons for their decisions as well as impose sanctions in
the proportionality of the offending. That being said, another great
the system is to address the underlying causes of offending,
rehabilitation and community care through
initiatives like the Family
Group Conference.91 Moreover, in the youth justice system,
specially trained judges are aware of the literature on what makes children and
persons different from adults, and understand the
86 Human Rights Watch “California: Repeal Law Jailing Children for Life.
Senate Should End ‘Life Without Parole’ for Juvenile Offenders”, above n
87 Grisso, above n 82, at 9.
88 Miranda rights (also known as Miranda warning), is a warning that the police must issue to criminal suspects held in custody about their constitutional rights.
89 Grisso, above n 82, at 6.
90 Andrew Becroft “Children and Young People in Conflict with the Law: Asking the Hard Questions” (XVII World Congress of the International Association of Youth and Family Judges and Magistrates, Belfast, 2006).
91 The Family Group Conference enables victims and
offenders to meet together with their families and enforcement agency members
to decide on the appropriate penalty.
surrounding them. This makes them better equipped to handle cases of child
offenders and defend their rights.
(b) International obligations and case law
Article 14 of the International Covenant on Civil and Political Rights
(“ICCPR”) states that all children ought to receive
trial”.92 What constitutes a “fair trial” was
debated in the ECHR in T v UK,93 where the Court eventually
found that Thompson and Venables were not given a fair trial in the sense
that inadequate measures
were taken to guarantee that they could properly
understand and participate in the legal proceedings.94 In its
judgment, the Court expressed that a fair trial “constituted the
capacity to participate and engage within the
trial arena”. More
specifically, it held that it was:95
Highly unlikely that the applicant would have felt sufficiently
uninhibited, in the tense courtroom and under public scrutiny, to
with them [his lawyers] during the trial, or indeed, that, given his immaturity
and his disturbed emotional state,
he would have been capable outside the
courtroom of cooperating with his lawyers and giving them information for the
of his defence.
In her article on the human rights of juvenile defendants, Gail Hubble argues
that in light of the Court’s decision, trying
young persons for
homicide in an adult court must now be viewed as unacceptable and a potential
violation of the young person’s
5. The age of criminal responsibility: conclusion
It is clear that research has indicated that children between the ages of
10 to 13 are not sufficiently mature to be criminally accountable.
However, the real world demands that individuals be
Hence the enforcement of an age of criminal
92 International Covenant on Civil and Political Rights, art 14.
93 T v UK, above n 74.
94 Gail Hubble (2000) “Juvenile Defendents: Taking the Human Rights of
Children Seriously” 25 Alternative Law Journal 116 at 116–120.
95 T v UK, above n 74.
96 Hubble, above n 94.
responsibility, however arbitrary, is essential. With this in mind, setting
the minimum age of criminal responsibility for all offences,
homicide offences, at 12 years seems to be the best option. This aligns New
Zealand with its international and national
obligations, as well as New
Zealand’s age of consent. Further to this, taking into account the
literature on the adjudicative
competence of children, this article now argues
that in New Zealand, the adult court is an unsuitable arena for child offenders
to “engage in meaningful dialogue with the rest of society to
explain and account for the wrongful conduct”.97
C. The Second Issue: The Process of Prosecuting Children for
1. The process: statutory exclusion
As discussed, the process for prosecuting children aged between 10 and
13 for homicide offences in New Zealand begins in the Youth Court where
their preliminary hearing takes place. However, legislation
provides that the child be immediately transferred to the High Court
for the substantial criminal trial. This immediate transfer
jurisdiction of the Youth Court to that of the High Court is whatthis article
will refer to as a “statutory exclusion”.99 A statutory
exclusion provision is one of the three main ways the law can remove a young
offender from a youth court into an adult
criminal court. The two other ways
this transfer can happen is via judicial waiver provisions100 or
prosecutorial waiver provisions.101 New Zealand’s
97 Gerry Maher (2005) “Age and Criminal Responsibility” 2 Ohio State
Journal of Criminal Law 493 at 507.
98 CYPF Act 1989, ss 272, 274.
99 It is also known as a “legislative waiver” or “automatic transfer”. See Joseph B. Sanborn Jr. (1994) “Certification to Criminal Court: The Important Policy Questions of How, When, and Why” 40 Crime and Delinq 262 at 264.
100 Will be discussed in greater detail in Part C(6) of this article.
101 It is also known as “concurrent
jurisdiction” between the youth and criminal courts over certain
In these cases, the prosecutor is given discretion to determine which
cases should be transferred to the adult court from a youth
court. See Barry
Feld (1978) “Reference of Juvenile Offenders for Adult Prosecution: The
Legislative Alternative to Asking
Unanswerable Questions” 62 Minn L Rev
515 at 557–561.
provision for homicide offences is not unusual and many jurisdictions have
similar provisions that automatically transfer children
into adult courts
for specific crimes 102 or for persistent offending. 103
While legislation in other jurisdictions may also call for a transfer
based on the nature of the offence (severity or heinousness),
some additional or
alternative factors may be the perceived dangerousness of the offender, the
desire to protect the community,
the potential for the offender to be
successfully rehabilitated or subjective factors like one’s pattern of
Advocates for statutory exclusion provisions highlight that one of its
strengths is in its non-discretionary and objective nature,
allowing it to
ensure accountability and be easily administered. 105 The
complete reliance on legal criteria set out in statute is said to prevent
prejudicial or arbitrary decisions from being
made, while facilitating
2. Why have statutory exclusion for homicide offences?
Criminal prosecution is but one method of dealing with the
transgressions of children. It is normally called upon
only when the act is
sufficiently serious or repetitive that non-criminal responses are deemed
inadequate.107 As discussed earlier, murder and manslaughter are
distinguished from other crimes in that they are the most serious offences
can commit. In New Zealand, this is reflected in the classification of murder
and manslaughter as purely indictable offences
requiring intervention from the
criminal justice system and necessitating offenders to be held accountable for
their actions in the
High Court,108 regardless of the
offender’s age.109 They are seen to be beyond
102 Usually for violent crimes to the person such as murder, manslaughter, aggravated robbery and rape.
103 Examples of countries are Australia, the United Kingdom and Louisiana, United States.
104 Kent v United States  USSC 50; (1966) 383 US 541, at 566–577.
105 Simon Singer “The Automatic Waiver of Juveniles and Substantive Justice” (1993)39 Crim & Delinq 253, at 253–255.
106 At 259.
107 Urbas, above n 70, at 1.
108 “New Zealand Government Response”, above n 19, at 26.
109 Except where the doctrine of doli incapax
purview of the Youth Court and the Youth Court does not believe it has the
necessary tools to deal with the offending.110
Insofar as serious and heinous crimes are concerned, it is not unusual for
society to demand retribution rather than rehabilitation.111 At
the heart of this concept of retribution is the “just deserts”
principle: the idea of punishment as condemnation and
As stated by von Hirsch, punishing a person “conveys in dramatic
fashion that his conduct was wrong and that he
is blameworthy for
having committed it.”113 That is, proportioning punishment to
the gravity of an offence shows the connection between the act and its
114 As murder is the most serious crime one
can commit, it follows that it merits the harshest punishments— those
only a court higher than the New Zealand Youth Court is able to
give.115 The statutory exclusion scheme “brings children into
an arena where there exists a great potential for them to be given harsher
punishment, without inquiry into any circumstances,”116
fitting into the retributive aims of society. Thus, along with the
knowledge that the High Court has the ability to hand out
there is also the overall expectation that it
110 Kuper, above n 34, at 15.
111 F Thomas Schornhorst “Waiver of Juvenile Court Jurisdiction” (1968) 43
Ind LJ 583 at 597.
112 Andrew von Hirsch Doing Justice—The Choice of Punishments (Hill and Wang, New York, 1976) at 48.
113 At 174.
114 At 66.
115 In adult courts, there is the possibility of life imprisonment for manslaughter and the presumption of life imprisonment for murder. The presumption of life imprisonment for murder can be rebutted if the sentence is found to be “manifestly unjust”. See Sentencing Act 2002, ss
177 and 102, respectively.
116 David Matza Delinquency and Drift (Wiley, New York,
3. Implications of transfer provisions
However, studies indicate that instead of reducing crime rates, harsher
punishment actually exacerbates the problem. 117 Boot camps
and corrective training programmes are examples of “get tough
interventions” that are ineffective.
118 With regard to
boot camps, Principal Youth Court Judge Becroft has been famously quoted saying
“it made them healthier,
fitter, faster, but they were still burglars,
just harder to catch”.119 In relation to imprisonment, due to
their reduced developmental and psychological maturity, children are more
threatening and provocative behaviour. Furthermore, as their
identity is still developing, children are more likely to act to
to gain peer approval or avoid rejection. Also, children are more likely to
learn criminal behaviour from other
inmates, leading to both a higher risk of
reoffending and higher rates of recidivism when
Although harsh punishment does not deter offending, appropriate
rehabilitative assistance can.121 As children’s behaviour
is a form of communication, effective strategies for reducing offending
the drivers of such behaviour – the root of the
offending. However, because retribution, deterrence and public safety are
main goals of adult courts, rehabilitation is often relegated to a place of
117 Andrew Becroft. “Alternative Approaches to Sentencing” (CMJA Triennial
Conference, Toronto, Canada, 2006).
118 Andrew Becroft “How to Turn a Child Offender Into An Adult Criminal—In 10 Easy Steps” (Children and the Law International Conference, Tuscany, Italy, 2009) at 27–31.
119 Emily Watt “Judge puts boot into boot camps” The Dominion Post (New
Zealand, 2 March 2000).
120 Becroft “Alternative Approaches to Sentencing”, above n 117.
121 Becroft “Putting Youth Justice Under the Microscope”, above n 45, at 44–
(a) Transfer provisions should not exist for homicide offences
No longer deemed a vulnerable and salvageable “child”, the
juvenile tried as an adult is written off for rehabilitation.
criminal justice system mechanically metes out punishment for the
crime in full measure, commensurate
with the full moral responsibility of
Janet E. Ainsworth, Youth Justice in a Unified Court122
Regardless of the method of transfer, once transferred, the child is held to
the same standard as an adult, making it the most crucial
stage of the
proceedings. In essence, the transfer is a “determination that the child
is beyond the rehabilitative philosophy
of the juvenile court”, and the
process where the child is “abandoned as incorrigible”.123
Barry Feld explains that:124
exclusion on the basis of [offences] represents a legislative repudiation of
the courts’ philosophical premise that it can
aid those appearing
before it by denying the courts the opportunity to try, without even an inquiry
into the characteristics of
the offending youth.
Indeed, transfer provisions represent society’s decision that a child
no longer merits the “consideration, regard,
protection” otherwise provided for children.125
Another reason for its abolition is that transfer provisions eliminate the
“last opportunity a youth is afforded to receive
effective treatment and
possibly accept society’s standards in the hopes of eventually
122 Janet Ainsworth “Youth Justice in a Unified Court: Response to Critics of
Juvenile Court Abolition” (1995) 36 BCL Rev 927at 947.
123 F Thomas Schornhorst (1968) “The Waiver of Juvenile Court Jurisdiction: Kent Revisited” 43 Ind LJ 583 at 586, quoting Watkins v Unites States (1964)
 USCADC 413; 343 F2d 278 at 282.
124 See Barry Feld “The Juvenile Court Meets the Principles of the Offense: Legislative Changes in Juvenile Waiver Statutes” (1987) 78 Journal of Criminal Law and Criminology 471 at 520 [“Legislative Changes”].
125 Franklin Zimring The Changing Legal World of Adolescence (The Free Press,
New York, 1982) at 195.
a productive citizen.”126 However, due to the politicised
nature of youth crime,127 it is unlikely that this is a cause of
concern for most people, people who desire to see retributive justice be done.
Hence the fact
that transfer provisions may not serve the function
of retributive punishment may be of interest.
In the case of Bailey Junior Kurariki, although known as New Zealand’s
youngest “killer”, he was found guilty of
manslaughter because he
was party to the offence, not because he actually delivered the fatal blow
that killed Choy.128 His role was to be a decoy for the delivery and
to give the signal to an older boy to deliver the blow. With New Zealand’s
liability provisions in the criminal law,129 one can be held
to be party to and guilty of an offence if he or she simply aids, abets,
incites, counsels or procures the primary
person to commit the offence.
Furthermore, s 66(2) sets out that:130
Where 2 or more persons form a common intention to prosecute any unlawful
purpose ... each of them is a party to every offence committed by any one of
them in the prosecution of the common purpose if the commission
of that offence
was known to be a probable consequence of the prosecution of the common
Had Michael Choy not died, the offence would have been classified as the
lessor offence of aggravated robbery—the “unlawful
that was the common intention of the group. However, due to the Court’s
finding that homicide was a “probable
consequence” of the
intended aggravated robbery, Kurariki was held to be guilty of
manslaughter. This arguably
holds offenders accountable over and
above their actions.131
126 Polen “Death Row”, above n 7, at 501.
127 Kuper, above n 34, at 20.
128 R v Rapira, above n 14.
129 Crimes Act 1961, s 66.
130 Section 66(2) (emphasis added).
131 Joseph Yeckel “Violent Juvenile Offenders: Rethinking Federal
Intervention in Juvenile Justice” (1997) 51 Wash U J Urb & Contemp L
331. Hector Linares and Derwyn Bunton “An Open Door to the Criminal
Courts: Analyzing the Evolution of Louisiana’s System
Waiver” (2010) 71 La L Rev 191.
Moreover, as studies indicate, harsh punishment does not work. In New Zealand, most child offenders are placed in one of four units attached to prisons, which also house older offenders between 17 to 20 years old. 132 This is dangerous in that while adults adapt to their surroundings, the nature of children see them being “adopted” by it.133
These children are likely to learn the criminal ways of the prison culture
and continue to use these norms upon release,134 leading to higher
rates of reoffending and crime. This shows that the purpose of public safety and
deterrence is not met either.135
Another compelling reason why transfer provisions should not be used is that
the New Zealand Youth Court is well equipped to
deal with child offending.
The New Zealand youth justice system and its main provision, the CYPF Act,
is admired internationally
and has been described with phrases such as
“world renowned” 136 and a “new
paradigm”.137 Its two key objectives act to ensure that child
offenders are held accountable for their crimes while dealt with “in a
that acknowledges their needs” and give them “the opportunity
to develop in responsible, beneficial, and socially acceptable
Expounding on this, the “need” principle is an example of the welfare model that underlies most youth justice systems. Such an approach has its origins in the positivist philosophy of criminology, which supposes that young offenders commit crime due to factors beyond their
132 Only the six “most vulnerable” are housed in a Youth Justice Residence.
Becroft “Alternative Approaches to Sentencing”, above n 117.
133 Barry Clark and Thomas O’Reilly-Fleming. Youth injustice: Canadian perspectives (Canadian Scholars Press Inc., Toronto, 1993) quoted in Becroft “Putting Youth Justice Under the Microscope”, above n 45, at 51.
134 Becroft “Putting Youth Justice Under the Microscope”, above n 45, at 51.
135 Linares and Bunton, above n 131.
136 Principal Youth Court Judge Andrew J. Becroft “Youth Justice Family Group Conferences: A Quick ‘Nip and Tuck’ or Transplant Surgery – What would the Doctor order in 2006” (Paper presented at the International Conference on the Family Group Conference—Coming Home, Te Hokinga Mai, Wellington, New Zealand, 2006).
137 Allison Morris and Gabrielle Maxwell (1993) “Juvenile Justice in New
Zealand: A New Paradigm” 26 Australian and New Zealand Journal of
Criminology at 81.
138 CYPF Act 1989, s 4(f)(ii).
control.139 Thus this care-focused approach looks to the root
causes of the child’s offending and what assistance the child requires to
cope with their personal problems and stop offending.140 The
welfare approach places importance on the rehabilitation and protection
of offenders, while discouraging punitive custodial
measures such as
imprisonment. The New Zealand Youth Court views imprisonment as the very
last resort and urges against
criminalising young offenders.141
Due to the Youth Courts’ utilisation of methods such as diversion
and supervision orders, imprisonment rates have decreased
significantly.142 Keeping in mind the detrimental effects of
imprisonment on young people, this is positive news.
The other aspect of the youth justice system encourages young people to accept responsibility for their criminal actions. This is an example of the justice approach at work. The justice approach operates on retributive principles and necessitates punishment fitting the crime.143
As such, criticisms that the youth justice system does not hold children
accountable and thus transfer provisions to ensure the adult
court does are
unfounded. More importantly, the justice element balances the right of society
to be protected from criminal conduct
and the right of individuals to just
treatment under law,144 hence due process rights are
139 Nicholas C Bala Juvenile Justice Systems: An International Comparison of Problems and Solutions (Thompson Educational Publishing, Toronto, 2002) [“Juvenile Justice Systems”] at 6.
140 Nessa Lynch “The Rights of the Young Person in the New Zealand Youth
Justice Family Group Conference” (PhD Thesis, University of Otago,
2008) at 15.
141 CYPF Act 1989, ss 208(d), 208(f).
142 Gabrielle Maxwell, Jeremy Robertson and Venecia Kingi “Achieving the Diversion and Demarcation of Young Offenders” (2002) 19 Journal of Social Policy 76.
143 Bala “Juvenile Justice Systems”, above n 139, at 6.
144 Raymond Arthur Young Offenders and the Law (Taylor & Francis, Hoboken,
2010) at 43.
5. When is a transfer necessary?
However, when a child offender is unlikely to benefit from the rehabilitative
values of the youth justice system, 145 or in “most
exceptional cases and in the gravest matters of public policy”
and public safety,146 it may be necessary to remove a child from the
Youth Court jurisdiction. Other such cases would be when the maximum
the Youth Court could possibly impose is still insufficient to hold
the offender accountable for his or her actions. These
situations will be rare,
but retaining a flexibility to deal with such cases as and when they occur is
However, the criticisms of New Zealand’s statutory exclusion scheme do not make it the transfer provision of choice. The “one size fits all” approach is too mechanical 147 and does not afford the flexibility required to deal with the circumstances of offending. The scheme assumes that if a child offender fits the profile by committing a homicide offence, he or she is immediately beyond the reach of rehabilitation in the youth justice system.148 Another criticism is that the only criterion looked at before a transfer occurs is the nature of the offence. However, evidence on the development of delinquent careers suggests that many young persons are involved in both petty and serious crimes at the same time.149 Thus, the gravity of a first offence is not as telling as to the child’s character and likelihood of reoffending as one may have thought. Instead, the amount of offences a youth has committed is a more reliable indicator. 150 Therefore, an offender’s cumulative record should be looked at too, and not merely the nature of the offence.
145 This is usually inferred from serious and persistent conduct.
146 Gerry Maher “Age and Criminal Responsibility” (2005) 2 Ohio State
Journal of Criminal Law 493 at 497.
147 Barry Feld “Justice by Geography: Urban, Suburban, and Rural Variations in Juvenile Justice Administration” (1988) 82 J Crim L & Criminology 156 at 3.
148 Francis McCarthy “The Serious Offender and Juvenile Court Reform: The Case for Prosecutorial Waiver of Juvenile Court Jurisdiction” (1994) 38 St Louis U LJ 655 at 654.
149 Marvin E. Wolfgang, Robert M. Figlio and Thornsten Sellin Delinquency in a
Birth Cohort (University of Chicago Press, Chicago,1972).
150 Feld “Legislative Changes”, above n
6. Judicial waiver
(a) What is it?
The judicial waiver scheme is predicted on the principle of
individualised justice, 151 in which the youth court judge
has the discretion to determine whether a child ought to be tried in an
adult court or
remain in the youth court. This is done by gaining a thorough
understanding of the offender’s character and needs.152
However, it is the discretionary nature of this individualized
screening element that has been the cause of concern by some
commentators and academics.153
Despite its perceived shortcomings, this article contends that the
judicial waiver scheme is the best method for handling
child offenders preparing
for a hearing on a homicide offence. Like the statutory exclusion
scheme, the judicial waiver
scheme does take into account the seriousness of
the crime. However, that is but one factor for consideration.
It also ensures factors other than the nature of the offence will be
considered,154 thus assuring that the procedural and constitutional
rights of children are addressed. One such factor that can be looked at is the
cumulative seriousness of all offences, which also happens to be a better
predictor of recidivism.155
(b) Sufficient competency provisions
The concerns about wide judicial discretion can be overcome by legislating sufficient competency provisions, like those already used
151 Kelly Elsea “The Juvenile Crime Debate: Rehabilitation, Punishment, or
Prevention” (1995) 5 Kan JL & Pub Poly 135.
152 David Matza Delinquency and Drift. (Wiley, New York, 1964) at [114-115].
153 Kathleen Strottman “Creating a Downward Spiral: Transfer Statutes and
Rebuttable Presumptions as Answers to Juvenile Delinquency” (1998) 19
Whittier L Rev 707; Robert Acton “Gubernatorial Initiatives and Rhetoric of Juvenile Justice Reform” (1996) 5 JL & Poly 277.
154 Catherine Guttman “Listen to the Children: The Decision to Transfer
Juveniles to Adult Court” (1995) 30 Harv CRCL L Rev 507, at 523, 526.
155 Richard Redding “Juveniles Transferred to Criminal Court: Legal Reform
Proposals Based on Social Science Research” (1997) Utah L Rev 709, at
when transferring youth offenders for non-homicide offences. The New Zealand youth justice process allows youth offenders to be transferred to adult criminal courts at 15 years of age 156 in limited circumstances. The judge will then look to the factors set out in s
284(1) of the CYPF Act157 to determine if the transfer should be made.
In Police v WMT158, Judge Watson of the Youth Court took
into account the criteria in s 284(1) as well as factors in Police v
James. 159 Of particular relevance was the violent nature and history
of offending and the lack of victim empathy. However, after
weighing up the rehabilitative options available from the Youth Court and
WMT’s age (15 years old), Watson J did not
employ the transfer provision
but gave WMT sentences of supervision instead. He noted that in the long term,
options would produce a more positive outcome for the
7. Reverse waiver
In the event that there is reluctance to abolish New Zealand’s
statutory exclusion provision for homicide offences in favour
of a judicial
waiver, there should be an addition of a reverse waiver.160 This
would safeguard against arbitrary and unfair transfers where the
circumstances surrounding the offending or the
potential to benefit from the
youth justice system ought to warrant an appeal.161 The reverse
waiver may even prove effective as a form of “judicial
review” with the introduction
of a judicial waiver.162
It is noted, though, that reverse waivers are generally less
desirable in conjunction with judicial waivers due to the burden
it places on
the limited resources of courts.”163
156 CYPF Act 1989, s 283(o).
157 See CYPF Act 1989, ss 284(1)(a) to (i) for the list of factors.
158 Police v WMT YC Hastings, CRI 2005-220-53; CRI 2006- 220-7; CRI 2006-
220-60; 28 July 2006.
159 Police v James (A Young Person)  8 FRNZ.
160 David Tanenhaus and Steven Drizin “Owing to the Extreme Youth of the Accused: The Changing Legal Response to Juvenile Homicide” (2002) 92 J Crim L & Criminology 64
161 For example, in cases of first-time offenders or non-violent accomplices.
162 McCarthy, above n 154, at 668.
163 Tanenhaus and Drizin, above n 163, at 694.
8. Limited imprisonment: 31st birthday provision
The effect of judicial waivers in Louisiana is mitigated by a special
sentencing rule that does not allow young persons who were transferred
years of to receive a sentence of imprisonment past their 31st birthday,
regardless of their offence.164This article contends that New
Zealand should adopt a similar provision, especially if the age of
remains as low as 10 years. While children can still be
incarcerated in the High Court via transfer provisions, or possibly in the
Court in the future, such a provision essentially puts a limit on the sentence
of imprisonment a child can serve. This aligns
with the key CYPF Act and youth
justice principles of addressing “need” and the
“deed”.165 The child is still punished proportionate to
the crime, but this punishment is adapted to take into account the age of the
the time of offending. It recognises the lack of maturity of children
and thus limited culpability, as well as leaves room
for the offender
to outgrow his offending in time. It would be hoped that rehabilitative
efforts would be invested in child
offenders to counteract negative influences
of prison life, and hence to prevent them from becoming
Furthermore, just as the age of criminal responsibility is in
itself arbitrary, so is the age of 31. As such, this article
does not advocate
that New Zealand necessarily adopt that specific age. However, as long as a fair
and reasonable age can be arrived
at which both ensures that the child offender
“does his time” and yet has years left to contribute meaningfully
to society, such a provision should be implemented.
This article has argued that children are treated as incapable to face the
full blow of the law in every other way and so they should
too with regard to
homicide offences. It is to be noted that there have been previous
efforts made to raise the
minimum age of criminal
164 La Child Code Ann, Art 857(B) (Supp 2010).
165 Andrew Becroft “Youth Justice—The New
Zealand Experience Past Lessons and Future Challenges”.
presented at the Australian Institute of Criminology/NSW Department of
Juvenile Justice Conference, Sydney, 2003) at 10.
responsibility to 12. This occurred in this form of the Crimes Bill 1989,
that aimed to replace the “anachronistic two-tier
with a “blanket age of criminal responsibility” at 12 years. This
meant that a child could not be
responsible if they were under 12 years of age
and after that age, no special rules for children applied.166 This is
similar to, but different from what this article proposed—which would be
to have no criminal liability of children
under 12 years of age, but to allow
the care and protection and the youth justice provisions in the CYPF Act to
remain in force
with regard to children older than 12 years. That being
said, the Crimes Bill 1989 did not take off. Conversely, the recent
Amendment Act, which increased the circumstances (other than homicide offences)
where a child between the ages of 12 and 13
can be prosecuted in the criminal
justice system, was put into force in 2010.
In the same year, the New Zealand Government responded to the UN
Committee’s 167 recommendation to increase the age
of criminal responsibility:168
New Zealand has no plans to raise the minimum age for prosecution of murder
and manslaughter offences from 10. New Zealand
and manslaughter offences as being in a special category that require
the offender to be held accountable
for their actions in the High
On these facts, as well as with the knowledge of New Zealand’s
“tough on crime” stance, it appears unlikely
age of criminal responsibility in New Zealand will be increased to 12
years, to bring it in line with international
and national covenants and the age
of consent. However, there may be hope that New Zealand may abolish its transfer
for homicide offences 169 and make full use
166 (2 May 1989) NZPD at http://www.vdig.net/hansard/content.jsp?id=10425.
168 New Zealand Government Response, above n 19, at 26.
169 Discussing the CYPF Act 1989 s 283(o) is not within
the scope of my paper, but the face of things, it is not as imperative
the CYPF Act 1989 s 283(o) transfer provision be abolished with regard to
other offences as they will carry lesser sentences
than the possibility or
presumption of life imprisonment for manslaughter or murder.
Furthermore, it may be
internationally renowned youth justice system. If not, perhaps New Zealand
will instead replace its statutory exclusion provision
with a judicial
waiver (with sufficient competency provisions), or consider adding a
reverse waiver or limited imprisonment
As stated, homicide cases involving child offenders are far and few between.
Surely then, the justice done by taking the time to judge
each case on its
individual merits, recognising that the child will once again be part of
society, would outweigh the costs. So
New Zealand has a choice to make. Will
it allow its criminal policies to be characterised as static and unchanging? Or
forge its own pathway ahead? At the end of the day, only time will