Life imprisonment of children in Oceania

As part of CRIN’s inhuman sentencing campaign, we monitor life imprisonment of children around the world and track relevant legal reform. This page includes country profiles for Oceania detailing the legality of life imprisonment in each country, how life imprisonment is defined nationally and, where the information is available, how many children are serving life imprisonment.

Please contact us at [email protected] if you are aware of any inaccuracies in this information of legal reforms underway to amend relevant legislation in any State.

Australia

Australia's criminal law is divided between the Federal jurisdiction (“the Commonwealth”), six states and three territories. Juvenile justice legislation and practices vary between these jurisdictions, so they are each addressed separately below.

Commonwealth

Life imprisonment for children permitted

Meaning of life imprisonment

Where a court imposes a federal life sentence, it must generally set a non-parole period which a sentenced person must serve in detention before being considered for conditional release or a “recognisance order” indicating the earliest release date.1 However, the court can decline to set such a minimum term, where “the nature and circumstances of the offence or offences concerned and … the antecedents of the person” satisfy the court that a minimum term is not appropriate.2

Minimum age of criminal responsibility

A child under the age of 10 cannot be held criminally liable for an offence against the law of the Commonwealth.3 A child older than 10 but younger than 14 can only be held criminally responsible if “the child knows that his or her conduct is wrong”,4 the burden of proof for which is on the prosecution.5

Maximum sentences

Life imprisonment. A person under the age of 18 can be sentenced to life imprisonment for a number of offences under Commonwealth law, including the murder of a UN or associated person, certain offences related to terrorism, treason and murder.6

Where a child is charged or convicted of an offence against Commonwealth law, he or she may be dealt with as if the offence had been one in State or Territory law.7 Where a State or Territory has a developed juvenile justice system, this can allow for more lenient sentencing.

Number of children serving life imprisonment

CRIN has not been able to locate statistical information on people sentenced to life imprisonment in Australia's Commonwealth jurisdiction.

Australian Capital Territory

Life imprisonment prohibited

Life imprisonment of young offenders has been explicitly prohibited since 2008.8 A young offender is defined as a person who has been found guilty of an offence by a court and was under the age of 18 at the time the offence was committed.9

Meaning of life imprisonment

A person serving a sentence of life imprisonment may be considered for release on licence after serving a minimum of 10 years' imprisonment.10

Minimum age of criminal responsibility

No person can be held criminally responsible for an offence allegedly committed while under the age of 10.11 A child aged older than 10 but younger than 14 can only be held criminally responsible where the prosecution can demonstrate that the child knows the relevant conduct is wrong.12

Maximum sentences

Young offenders cannot be sentenced to life imprisonment13 but no other explicit limits are placed on the length of detention. The maximum term – excluding life imprisonment - to which a person can be sentenced is 25 years' imprisonment,14 which appears to be the maximum term to which a young offender may be sentenced.

In deciding to hand down a sentence of imprisonment to a young offender, the court must only do so as a last resort, for the shortest appropriate term and must consider making a combination sentence (one which has a sentence of imprisonment and a non-custodial good behaviour order with a supervision condition).15

Number of children serving life imprisonment

Life imprisonment is not a lawful sentence for an offence committed while under the age of 18. CRIN could not confirm whether anyone is serving a life sentence passed prior to the 2008 abolition of life imprisonment for child offenders.

New South Wales

Life imprisonment

Life imprisonment is lawful as a sentence for offences committed while under the age of 18.

Meaning of life imprisonment

Life imprisonment for murder is defined as a “sentence for the term of the person's natural life”.16 Reforms to life imprisonment in the state have created categories of life prisoner depending on when the person was sentenced.17 Under current sentencing practices, there is no parole mechanism for life imprisonment sentences, but the Governor may exercise the prerogative of mercy on the advice of the executive government.18

In practice, the type of sentence a person will serve depends on when the sentencing took place, as successive justice reforms have resulted in a number of types of life imprisonment existing side by side.19

Minimum age of criminal responsibility

No child under the age of 10 can be held criminally responsible for an offence.20 Courts have discretion as to whether to hold children aged 10 to 14 criminally responsible.21

Maximum sentences

Life imprisonment. The Young Offenders Act 1997 sets out justice procedures and penalties for offences committed by children over the age of 10 but younger than 18. The Act does not provide for life imprisonment as a sentence, but only applies to offences that can be heard summarily. As the offences that carry life imprisonment in the adult justice system cannot be heard summarily, the Act does not prevent child offenders from being sentenced to life imprisonment.

The Crimes Act of New South Wales makes provision for a small number of offences for which life imprisonment is a lawful penalty. Children under 18 are explicitly excluded from the mandatory life sentence without parole for persons convicted of murdering a police officer, but not for other forms of life imprisonment.22 Life imprisonment is a lawful penalty for a small number of offences, including murder, sexual intercourse with a person under the age of 10 under aggravating circumstances.23

Number of children serving life imprisonment

As of December 2012, the Serious Offenders Review Council reported on the number of “serious offenders” in the state and the sentences that they were serving. The term “serious offender” includes any person serving a sentence of life imprisonment. At the time of the report, the youngest person classified as a “serious offender” was aged 20.24 The report does not include figures on the age of the offenders at the time they committed the offence.

In 1990, two child offenders were sentenced to life imprisonment for murder subject to recommendations that they should never be released. At the time, these judicial recommendations did not rule out the possibility of release, but subsequent reforms changed the rules on release with the effect that the two would “almost certainly never be released”. Both of the offenders unsuccessfully appealed against the severity of the offence shortly after the original sentencing, and then again in 2006.25

Northern Territory

Life imprisonment

Life imprisonment is a lawful sentence for offences committed while under the age of 18.

Meaning of life imprisonment

Where a court sentences a person to life imprisonment, it must set a non-parole period which is the minimum term that person must serve in detention before being considered for parole.26 For murder, the standard non-parole period is 20 years, but where there are aggravating circumstances, this can be raised to 25 years.27 Life imprisonment without the possibility of parole is lawful where the sentencing court is satisfied that “the level of culpability in the commission of the offence is so extreme the community interest in retribution, punishment, protection and deterrence can only be met if the offender is imprisoned for the term of his or her natural life without the possibility of release on parole”.28

Minimum age of criminal responsibility

No person can be held criminally responsible for an act, omission or event allegedly committed while he or she was under the age of 10.29

A child older than 10 but younger than 14 can only be held criminally responsible for an act, omission or event where it is proved that at the time of the alleged offence, he or she had capacity to know that he or she ought not do the act, make the omission or cause the event.30

Maximum sentences

The Youth Court can order a child to be imprisoned or detained for a maximum of two years if the child is aged 15 or older and detention for a maximum of 12 months if the child is younger than 15.31

Where the Supreme Court hears a criminal case against “a youth” (that is a person under the age of 18)32 it may sentence that person to a period of detention longer than that allowed for the Youth Court, provided that the sentence does not exceed that to which an adult could be sentenced.33 This permits life imprisonment of children for a number of offences, as under the Criminal Code 26 offences permit life imprisonment for adults.34

The Youth Justice Act explicitly permits the sentencing of children to life imprisonment by the Supreme Court. Where “a youth” is convicted of murder, the Supreme Court may sentence him or her to life imprisonment.35 This sentence is not mandatory as it would be for an adult, allowing the court to impose a lesser penalty if it considers it appropriate.36

However, where a person under the age of 18 is charged with an offence which would be punishable with life imprisonment for an adult, the Youth Court must deal with the charge by way of preliminary examination.37

Number of children serving life imprisonment

The Department of Correctional Services produces annual figures on the number of children held in detention – a daily average of 49 during 2012-13. The figures are insufficiently broken down to work out whether anyone is serving life imprisonment for an offence committed while under the age of 18.

Between 2006 and 2008, five juveniles were held in pre-trial detention in relation to a charge of murder. If convicted, these people would be eligible for life imprisonment. None of these people were subsequently convicted of murder, however.38 In the 2011-12 reporting period one person was received into custody for murder while aged 17 in the 2011-12 but it is not clear whether this was pre-trial or post-sentence.39

It is possible to gauge the number of child offenders who might be affected by life sentences by looking at the number of juveniles received into detention for murder. However, the figures do not generally distinguish between pre-trial and post-sentence detention, so it is not possible to put an authoritative figure on the number of child offenders serving life imprisonment.40

Queensland

Life imprisonment

Life imprisonment is a lawful sentence for offences committed while under the age of 18.

Meaning of life imprisonment

The minimum term to be served in detention for a life sentence varies according to the severity of the offence. The minimum period that can be set is 15 years, but minimum periods of 20, 25 and 30 years are also possible.41

Minimum age of criminal responsibility

A child under the age of 10 cannot be held criminally responsible for any act or omission. A person older than 10 but younger than 14 can only be held criminally responsible for an act or omission if he or she had capacity to know that he or she ought not to do the act or make the omission.42

Maximum sentences

Children tried as adults. Under the Juvenile Justice Act, children are tried as adults for offences committed from the age of 17 .43 The Governor in Council has the power to raise this age to 18 but at the time of writing this had not happened.

Children tried as adults can be sentenced to life imprisonment for a large number of offences under the Criminal Code.44

There are a number of situations in which a person can be sentenced as an adult, even if Queensland's laws recognise the person as a child at the time the offence was committed:

• If a person is 18 at the time criminal proceedings are taken, then the person must be tried and sentenced as an adult even if the offence was committed while a child.45
• Where proceedings have begun against a person for an offence committed while under 17, but proceedings are not completed until the person has reached the age of 18, then he or she must be sentenced as an adult.46
• If the court has been unable to sentence a person for an offence committed while under 17 for a number of specifically listed reasons (because the person escaped from detention, failed, without reasonable excuse to appear as required by conditions of bail or failed without reasonable excuse to return to a detention centre at the end of a period of leave) and the convicted person has reached the age of 18, then the offender must be sentenced as an adult.47

None of these exceptions can be applied where the court is satisfied that there was undue delay on the part of the prosecution in starting or completing proceedings.48

Life imprisonment for child offenders. For an offence that carries a sentence of life imprisonment for an adult, a child offender can be sentenced to life imprisonment if the offence involves violence against a person and the court considers the offence to be “a particularly heinous offence having regard to all the circumstances”.49

Number of children serving life imprisonment

CRIN has not been able to locate statistics on the number of people serving life imprisonment for an offence committed while under the age of 18, though a number of cases could be identified in which people were so sentenced.

In October 2011, media reported that a 15-year-old boy had been sentenced to life imprisonment for murder;50 in March 2007, a boy was sentenced to life imprisonment for a murder committed while he was 16;51 and in 1998, a young man unsuccessfully appealed against his life sentence handed down for an offence committed when he was 16.52

South Australia

Life imprisonment

Life imprisonment is a lawful sentence for offences committed while under the age of 18.

Meaning of life imprisonment

When sentencing a person to life imprisonment, the court must set a non-parole period to be served before the person may be considered for release on parole. For murder, the minimum non-parole period is 20 years' imprisonment.53

Minimum age of criminal responsibility

A child under the age of 10 is considered incapable of committing a criminal offence.54 The court has discretion as to whether to hold children aged 10 to 14 criminally responsible.55

Maximum sentences

The maximum sentence that can be applied for a crime committed while under the age of 18 varies significantly depending on whether sentencing takes place before the Youth Court, the Supreme Court or the District Court.

The Director of Public Prosecutions has discretion as to where to lay charges. Where the accused is charged with a “major indictable offence” and the DPP is of the opinion that the accused poses an appreciable risk to the safety of the community and should, therefore, be dealt with in the same was as an adult, then the child may be charged before the Magistrates' Court.56 The Magistrates' Court, after preliminary examination, may refer the case to the Supreme Court, District Court or Youth Court.57

Youth Court – 3 years detention. The Youth Court cannot sentence a person under the age of 18 to imprisonment,58 but can impose a sentence of detention in a training centre for up to three years.59

Supreme Court or District Court – life imprisonment. Where a person was under the age of 18 at the time of committing an alleged offence, but the case is heard by the Supreme Court or District Court, he or she can be sentenced as an adult.60

A child who is found guilty of murder must be sentenced to life imprisonment and must be dealt with as an adult.61

Where a child offender is sentenced to detention as an adult, he or she will usually be detained in a training centre.62 Before the child offender reaches the age of 18, the sentencing court must review the detention to determine whether he or she should be continue serving the sentence in the training centre or be transferred to a prison.63

Number of children serving life imprisonment

CRIN has not been able to identify statistics indicating how many child offenders have been sentenced to life imprisonment in South Australia, but media reports indicate that the sentence has been applied for murder committed while under the age of 18 as recently as March 2014.64

Tasmania

Life imprisonment

Life imprisonment is a lawful sentence for offences committed while under the age of 18.

Meaning of life imprisonment

When sentencing a person to life imprisonment, the sentencing court may set a minimum period that must be served before the sentenced person becomes eligible for parole.65 The Court is not required, however, to set such a period, which may result in life sentences without the possibility of parole.66

Minimum age of criminal responsibility

No child can be held criminally responsible for an act taken or omission made while under the age of 10. No child older than 10, but younger than 14 can be held criminally responsible unless it is proved that he or she had sufficient capacity to know that the act or omission was one that he or she ought not to do or make.67

Maximum sentences

Youth Justice Act - detention. Sentences for young offenders are contained within the Youth Justice Act 1997, and include detention.68 The Youth Justice Act sets limits on the sentences that can be applied to a “youth”(older than 10 but younger than 18), including that the sentence must not be more severe than for an adult who commits the same offence, the court must obtain a pre-sentence report before sentencing a child to detention.69 A detention order under the Youth Justice Act cannot exceed two years.

Supreme Court. Where the Supreme Court hears a case in relation to an offence committed by a person older than 10 but younger than 18 at the time of the offence, it may make use of the sentences under the Youth Magistrate Act, but also any other power it has to sentence for an offence.70 This provision would permit life imprisonment for child offenders as under the Criminal Code Act, life imprisonment is a lawful penalty for treason and murder.71

Number of children serving life imprisonment

CRIN has not been able to locate statistics on the number of people serving life imprisonment for an offence committed while under the age of 18.

Victoria

Life imprisonment

Life imprisonment is a lawful sentence for offences committed while under the age of 18. Life imprisonment without the possibility of parole is not explicitly prohibited for child offenders.

Meaning of life imprisonment

When sentencing a person to life imprisonment the court may set a minimum period during which the offender will not be eligible for parole.72 It is possible for the court to set a term of life imprisonment without the possibility of parole for particularly serious multiple murders.73 There is no explicit ban on sentences of life without the possibility of parole for a person under the age of 18 at the time of the offence, though no such sentence has been passed for a child offender in Victoria.

Where a person under the age of 21 is sentenced to life imprisonment, he or she must be detained in a place as directed by the responsible Minister.74

Minimum age of criminal responsibility

A child under the age of 10 is considered incapable of committing a criminal offence.75 The court has discretion as to whether to hold children aged 10 to 14 criminally responsible.76

Maximum sentences

The Criminal Division of the Children’s Court holds jurisdiction over all summary offences and all charges for indictable offences other than the most serious and violent offences. The Children’s Court cannot hand down a sentence of life imprisonment,77 however the offences which carry life imprisonment are outside the jurisdiction of the Children's Court.78

Life imprisonment is a lawful sentence for a small number of offences under the criminal law of Victoria, including murder and treason.79 There is no limitation on the application of these sentences to persons under the age of 18 at the time of committing the relevant offence.

Number of children serving life imprisonment

Six people have been sentenced to life without the possibility of parole in Victoria since 1986, none of whom were under the age of 18 when the relevant offence was committed.80 In the case of Debs and Roberts, two men were sentenced for the murder of two police officers after a robbery. One of the offenders was under 18 at the time of the offence and was sentenced to life imprisonment with a minimum term of 35 years to be served before release while his accomplice, who was 45 at the time of the offences, was sentenced to life without parole.81

Between 2007/8 and 2011/12, two people were sentenced for murder in Victoria while under the age of 18 (they were aged 17 at the time of the offence).82 The statistics were insufficiently broken down to determine the minimum period to be served in detention for these two child offenders.

Western Australia

Life imprisonment

Life imprisonment is a lawful sentence for offences committed while under the age of 18. Life imprisonment without the possibility of parole is not explicitly prohibited for child offenders.

Meaning of life imprisonment

When sentencing a person to life imprisonment for murder, the court must set a minimum period to be served in detention of at least 10 years,83 but may also order that the offender must never be released.84 A person serving a life sentence for an offence other than murder cannot be released before serving seven years of imprisonment.85 There is no express prohibition on sentencing a child offender to life imprisonment without the possibility of parole.

Minimum age of criminal responsibility

A person under the age of 10 cannot be held criminally liable for any act or omission.86

Maximum sentences

Life imprisonment. A “child” (defined as any person under the age of 18)87 who is found guilty of murder is liable to be sentenced to life imprisonment or to detention in a place determined by the Governor. Life imprisonment is not mandatory for murder, but where the court does not pass such a sentence it must give written reasons for not doing so.88

Number of children serving life imprisonment

CRIN has not been able to locate statistics on the number of people serving life imprisonment for an offence committed while under the age of 18, but has been able to identify a small number of cases in which children were so sentenced. In 2007, two girls were sentenced to life imprisonment for a murder committed while they were 16.89 In 2001, the Supreme Court of Western Australia found no error in the sentencing of a boy to life imprisonment for a murder committed when he was 15 years old.90

Fiji

Life imprisonment

Life imprisonment is a lawful penalty for offences committed while under the age of 18.

Meaning of life imprisonment

Whenever a judge sentences a person to life imprisonment, the court must fix a period during which the offender is not eligible to be released on parole.91 If a court considers that the nature of the offence, or the past history of the offender, make the fixing of a non-parole period inappropriate, the court may decline to set such a period.92 For murder, the court also has the power to set a minimum term to be served before a person can be considered for a pardon.93

Minimum age of criminal responsibility

No one can be held criminally responsible for any act or omission committed while under the age of 10.94 Children older than 10 but younger than 14 at the time of allegedly committing an offence can only be held criminally responsible if he or she knew that the conduct was wrong”95 In establishing whether the child knew the conduct to be wrong, the burden of proof is on the prosecution.96 A male person under the age of 12 is presumed incapable of having carnal knowledge,97 a provision which prevents the prosecution of younger boys for certain sexual offences.

Maximum sentences

Life imprisonment for children aged 17 or over

Children aged 17 or over are tried as adults and can be sentenced to the same penalties as adults.98 The Crimes Decree 2009 provides for life imprisonment for a large number of offences, including treason, genocide, crimes against humanity, piracy, counterfeiting, rape, defilement of a child under 13, incest with a child under 13, murder, killing an unborn child, disabling in order to commit an offence, stupefying in order to commit an offence, causing grievous harm or preventing arrest, preventing escape from wreck, unlawfully destroying a dwelling or vessel by explosion.99

Children under 17

Children younger than 17 are regarded as juveniles and dealt with in the Juvenile Court. Juvenile Courts may sentence a young person to up to two years' imprisonment, therefore life imprisonment is not lawful in any proceedings that take place before a juvenile court.100 However, juvenile courts cannot dispose of murder or attempted murder cases, which must be heard in the High Court.101

It is possible for children under 17 to be sentenced to longer terms of detention where they are convicted of certain violent offences102 and the court is of the opinion that none of the other methods by which the case may be legally dealt with is suitable. In such circumstances, a child can be sentenced to be detained for a period as directed by the order of the court and on conditions as directed by the relevant Minister. People detained in this way can be released on licence by the Minister at any time and recalled to detention for breach of that licence.103

Number of children serving life imprisonment

CRIN could not locate any statistical information on the number of people sentenced to life imprisonment for an offence committed while under the age of 18.

Kiribati

Life imprisonment

Life imprisonment is a lawful sentence regardless of age.

Meaning of life imprisonment

When sentencing a person to life imprisonment, the court can set a period that must be served before the offender can be considered for parole. Where the court does not set such a period, the sentenced person must serve 10 years before being considered for release.104

Minimum age of criminal responsibility

No person under the age of 10 can be held criminally responsible.105 A person between the ages of 10 and 14 can only be held criminally responsible for an act or omission where he or she “had capacity to know that he ought not to do the act or make the omission.”106 A male person under the age of 12 is considered incapable of having sexual intercourse,107 a provision which prevents the prosecution of younger boys for certain sexual offences.

Maximum sentences

Life imprisonment

Life imprisonment is a lawful penalty for a number of offences in Kiribati, including murder, attempted murder, manslaughter, arson, rape, robbery, piracy, treason, instigating invasion, burglary, administering poison with the intent to cause miscarriage.108

No limitations are stated in relation to persons under 18. The Code states that a person liable to imprisonment for life or any other period may be sentenced to a shorter term, with the exception of the offences of treason, instigating invasion, piracy and murder, for which life imprisonment is mandatory.109

Number of children serving life imprisonment

CRIN has not been able to locate any statistical information on the number of people sentenced to life imprisonment for an offence committed while under the age of 18.

Marshall Islands

Life imprisonment

Life imprisonment is a lawful sentence for offences committed while under the age of 18.

Meaning of life imprisonment

The Cabinet has the power to pardon any person convicted of an offence on the recommendation of the parole board and the parole board may release any person convicted of an offence on parole.110 (subject to applicable regulations)

Minimum age of criminal responsibility

No child under the age of 10 is considered capable of committing a crime under national law, and children between the ages of 10 and 14 are presumed incapable of committing crimes except in relation to the offences of murder and rape where the presumption is rebuttable. However, there is no minimum age limit for the bringing disciplinary proceedings against a person under the age of 18.111 The UN Committee on the Rights of the Child has been critical of this provision, noting that it amounts to an absence of a minimum age of criminal responsibility.112

Maximum sentences

Life imprisonment for murder

The Criminal Code of the Marshall Islands governs the penalties applied for criminal offences and does not explicitly restrict those penalties that may be applied to people under the age of 18. Life imprisonment is a lawful penalty for first degree murder113 and second degree murder,114

Lengthy detention

For first degree felonies, the maximum term of imprisonment would be 25 years and for second degree felonies, 10 years.115

Number of children serving life imprisonment

CRIN has not been able to locate any statistical information on the number of people sentenced to life imprisonment for an offence committed while under the age of 18.

Micronesia, Federated States of

Jurisdiction for criminal offences in the Federated States of Micronesia is divided between Federal and State law. The vast majority of criminal offences are contained within the relevant State Codes, but a small number of offences are still tried under Federal law. The penalties applicable to children, therefore, vary between the States.

Federal law

Life imprisonment

Life imprisonment is a lawful sentence for a number of offences committed while under the age of 18.

Meaning of life imprisonment

Trial justices of the national courts are able to review the sentences of people serving life imprisonment after 10 years of the sentence has been served. The judge who originally sentenced the offender will usually be required to review the sentence, but the Chief Justice may designate another justice for the review where the trial judge is not available. The justice must make his or her determination based on “the prisoner's behaviour in prison and any factors indicative of the prisoner's chances for a successful adaptation to community life after release.”116

Minimum age of criminal responsibility

A person under the age of 18 who is treated as a “delinquent child” - any person under the age of 18 accused of violating a Trust Territory or district law – can be sentenced to confinement.117 There is no lower age limit for this form of deprivation of liberty.

A child can be tried as an adult from the age of 16 if the court is of the opinion that his or her physical and mental maturity so justifies.118

Maximum sentences

Life imprisonment. Children tried as adults could be liable to life imprisonment for committing treason and advocating armed insurrection.119

A person under the age of 18 who is treated as a “delinquent child” - any person under the age of 18 accused of violating a Trust Territory or district law – can be sentenced to confinement. Confinement cannot exceed the period for which an adult could be sentenced for a criminal offence.120 As adults can be sentenced to life imprisonment, this provision does not prohibit life imprisonment for child offenders.

Number of children serving life imprisonment

CRIN was unable to locate any evidence of a person being sentenced to life imprisonment for an offence committed while under the age of 18.

Chuuk

Life imprisonment

Life imprisonment appears to be a lawful sentence for offences committed while under the age of 18.

Meaning of life imprisonment

CRIN has not been able to determine how life imprisonment is defined in Chuuk.

Minimum age of criminal responsibility

Children under the age of 10 are conclusively presumed to be incapable of committing any crime. A child aged 10 to 14 is presumed incapable of committing any crime, though this presumption can be rebutted. Proceedings against a “delinquent child” can be brought against any person under the age of 18.121 This provision permits confinement sentences for children that amount to deprivation of liberty regardless of age.

Maximum penalties

An offender aged 16 or over may be treated as an adult if “in the opinion of the court his physical and mental maturity so justifies”.122 Life imprisonment is a lawful sentence for adults, including for murder,123 so this provision would appear to permit the sentencing of child offenders aged 16 or older to life imprisonment.

Children under the age of 16, or those aged 16 to 18 who are treated as “delinquents”,124 can be sentenced to confinement “in such place, under such conditions, and for such period as the court, deems the best interests of the child require, not exceeding the period for which he might have been confined if he were not treated as a juvenile offender”.125

Number of children serving life imprisonment

CRIN was unable to locate any evidence of a person being sentenced to life imprisonment for an offence committed while under the age of 18.

Kosrae

Life imprisonment

Life imprisonment does not seem to be a lawful sentence for any offence committed under state law.

Minimum age of criminal responsibility

Children can be tried as adults from the age of 16 where the court finds that the physical and mental maturity of the child justify this measure.126 Children can be treated as “delinquents” when they violate state or national law, and can be subject to sentences amounting to deprivation of liberty.127

Maximum penalties

An offender aged 16 or over may be treated as an adult if “in the opinion of the court his physical and mental maturity so justifies”.128 The maximum penalty for an offence under the State Code appears to be imprisonment for up to 20 years for murder.

Where a child is treated as a “delinquent child” - this includes minors who violate state law - he or she cannot be convicted of a criminal offence, but can be subject to measures that amount to deprivation of liberty. The courts may order the confinement of a “delinquent child in a place, under conditions, and for a period not exceeding the period of confinement provided by law for the offence which the court determines are in the delinquent child's best interests”.129

Number of children serving life imprisonment

Life imprisonment is not a lawful penalty under the criminal law of Kosrae.

Pohnpei

At the time of writing, insufficient information about the criminal law was available to establish sentencing rules in Pohnpei. As of May 2014, Pohnpei was drafting a State Code which would clarify the criminal laws of the State. Updated information will be available through FSM Law when the Code is enacted.130

Yap

Life imprisonment

Life imprisonment is not explicitly prohibited for offences committed while under the age of 18. The juvenile justice provisions of state law do not guarantee that child offenders will not be sentenced to detention that could extend for the rest of his or her life.

Meaning of life imprisonment

Any person who is sentenced to imprisonment for more than six months, including life imprisonment, may be pardoned or paroled on the terms and conditions as the Governor “deems best”.

Minimum age of criminal responsibility

Any child under the age of 18 can be treated as a “delinquent child” if he or she has violated a state or federal law, with the exception of traffic laws.131

Maximum penalties

A child found to be a “delinquent” may be confined “in such place under such conditions and for such period as the court deems the best interest of the child required, not exceeding the period for which he might have been confined if he were not treated as a juvenile”.132 Life imprisonment is a lawful penalty for murder133

Number of children serving life imprisonment

CRIN was unable to locate any evidence of a person being sentenced to life imprisonment for an offence committed while under the age of 18.

Nauru

Please note that this profile is yet to be updated to take account of the Crimes Act 2016, which repealed the Queensland Criminal Code 1899 that formerly governed criminal law in Nauru.134

Life imprisonment

Life imprisonment is a lawful penalty for offences committed while under the age of 18.

Meaning of life imprisonment

The Parole Board is empowered to make recommendations to the responsible minister about the release of a person serving life imprisonment.135 Where a person is subject to a life sentence, the parole board may consider whether to make such a recommendation after the sentenced person has served 10 years in detention and no more than once every 12 months thereafter.136 Prior to 2009, persons serving life imprisonment for offences other than murder could be considered for parole after serving five years' imprisonment.137

A person serving a life sentence who is released from prison may continue to be on probation for the rest of his or her life and may be recalled to prison without further conviction.138 However, a probationer serving a life sentence may petition the Parole board for discharge from probation three years after his or her release from detention.139

Minimum age of criminal responsibility

A person under the age of 10 cannot be held criminally responsible for any act or omission. A person aged under the age of 14 can only be held criminally responsible where it can be proved that he or she had capacity to know that he or she “ought not to do the act or make the omission”.140

The court applied this standard in Republic v. Olsson in the case of a 13-year-old boy who had thrown a stone at a girl who had died as a consequence of her injuries. In ruling on the issue of whether the boy knew he ought not to do the act, the presiding judge stated that his capacity “could be inferred from his general behaviour and upbringing” and from circumstantial evidence. In particular in finding that the boy did have capacity, the judge relied on the evidence that the child had told the investigating police officer that he was scared because he had thrown the stone at the girl.141

Maximum sentences

There is no specialised juvenile justice system in Nauru, rather child offenders are sentenced under the Criminal Code, which provides for life imprisonment for a large number of offences.142

Number of children serving life imprisonment

No case could be identified in which a person was sentenced to life imprisonment for an offence committed while under the age of 18. In 1980, a 13-year-old boy was found guilty of manslaughter,143 which carries a maximum sentence of life imprisonment,144 but we have been unable to locate the sentencing documents.

New Zealand

Life imprisonment

Life imprisonment is a lawful sentence for offences committed while under the age of 18.

Meaning of life imprisonment

When a person is sentenced to life imprisonment, a minimum term must be set that must be served before that person can be released on parole. The minimum such term is 10 years,145 and must be more than 17 years where certain aggravating criteria are met.146 Life imprisonment without the possibility of parole is a lawful sentence for murder147 but only if the offender was over the age of 18 at the time of the offence.148

Minimum age of criminal responsibility

No person can be convicted of an offence in relation to an act or omission committed while under the age of 10.149 A child older than 10 but younger than 14 can only be convicted of an offence where he or she knew that the act or omission was wrong or that it was contrary to law.150

The Children, Young Persons and Their Families Act sets further limits on when a person under the age of 18 can be tried and convicted:

• Children aged 10 or 11 can only be prosecuted for murder or manslaughter and can be tried as if they were a “young person” (i.e. aged 14 to 16 inclusive).151
• Children aged 12 or 13 can be held criminally responsible for offences for which the maximum penalty is or includes imprisonment for life or where the maximum penalty is 10 years' imprisonment or more.152

For the purposes of New Zealand’s criminal law, a child is defined as a person under the age of 14 and a young person is defined as a person aged 14 or over, but under 17.153

Maximum sentences

Transfer to adult courts

Where a young offender is transferred to the District Court or High Court, those courts are able to apply the full range of penalties that would be available for an adult offender unless a particular penalty is explicitly prohibited.

Children aged 17 – life imprisonment

Children aged 17 are sentenced as adults and so can be sentenced to life imprisonment for murder and manslaughter.154

Children aged 14 to16 (“young offenders”)

No court can impose a sentence of imprisonment on a young offender other than in relation to a category 4 or category 3 offence for which the maximum penalty available is, or includes, life imprisonment or imprisonment for at least 14 years if the offender was under the age of 17 at the time of the offence.

• Category 3 offences are those punishable by imprisonment for life or by imprisonment for 2 years or more (unless listed in Schedule 1 of the Criminal Procedure Act).
• Category 4 offences are those listed in Schedule 1 of the Criminal Procedure Act 2011.155

The most serious penalties can only be applied where a child or young offender is transferred to the District Court or High Court for sentencing. This is possible in the following circumstances:156

1. At the discretion of the Youth Court for children aged 15;
2. Where a child aged 14 or older has been charged with a category 4 offence or a category 3 offence for which the maximum penalty includes imprisonment for life or for at least 14 years;
3. Where a person aged 14 or older is charged with an offence for which life imprisonment is an available penalty and where the court considers that life imprisonment may be appropriate.

In such circumstances, the court would be empowered to sentence a child to life imprisonment for an offence that carries life imprisonment for an adult, though life imprisonment without the possibility of parole is explicitly prohibited for offences committed while under the age of 18.157 Life imprisonment is a lawful penalty for treason, piracy involving the murder or attempted murder of a person, piratical acts involving the commission of murder or attempted murder, murder and manslaughter.158 The sentence for murder must be life imprisonment unless “given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.”159

Children aged 10 to 13 (“child offenders”)

Children aged 10 and 11 can only be prosecuted for murder and manslaughter and can be sentenced to imprisonment for these offences.160 Detention takes place in a Child, Youth and Family Youth Justice Residence under the custody of the Chief Executive of the Ministry of Social Development. Since such children can be tried as if they were “young persons” (i.e. aged 14 or older), this would appear to permit life imprisonment.

Children aged 12 or 13 can be held criminally responsible for offences for which the maximum penalty is or includes imprisonment for life or where the maximum penalty is 10 years' imprisonment or more.161 There is no explicit prohibition on life imprisonment for such offenders.

Where a child is aged 12 or 13 and has previously committed offences (listed under S. 272(1A) or (1B) and is charged with an offence carrying a sentence of 10 to 14 years' imprisonment proceedings may be brought under the Criminal Procedure Act 2011.162

Number of children serving life imprisonment

Official statistics on the number of people sentenced to life imprisonment for offences committed while under the age of 18 are not available. Between 2000 and 2013, 42 people aged 17 to 19 were sentenced to life imprisonment, but it is not clear how many of these people were 17 at the time of the offence.163

No child aged 10 or 11 has been convicted of a homicide offence since at least 1992, so during that period, no child of that age should have been sentenced to life imprisonment.

Over the same period 15 children aged 12 to 13 were subject to adult sentences for homicide or related offences and so would be eligible for life imprisonment, but it is not clear how these children were sentenced. Similarly 34 children aged 14; 45 aged 15 and 72 aged 16 were sentenced in adult courts for homicide or related offences, but it is not clear what sentence was applied.164

Palau

Life imprisonment

Life imprisonment appears to be a lawful sentence for offences committed while under the age of 18.

Meaning of life imprisonment

CRIN has not been able to identify how life imprisonment is defined in national legislation and implemented in practice.

Minimum age of criminal responsibility

No one can be held criminally responsible for an offence allegedly committed while under the age of 10. Children between the ages of 10 and 14 can only be held criminally responsible for murder or rape.165

Maximum sentences

Life imprisonment

Palau's National Plan of Action for Children, as presented to the UN Committee on the Rights of the Child in 2000, indicates that life imprisonment was a lawful sentence for a small number of offences committed by child offenders.166 CRIN has not been able to locate any information indicating that the relevant provisions have been amended.167

Several provisions under the Palau National Code provide for life imprisonment, including as a sentence for first degree murder, second degree murder, offences related to the production or use of chemical weapons, use of riot control agents as a method of warfare and terrorism offences.168 CRIN has not been able to establish whether the juvenile justice provisions of the Code (under Title 34) limit the application of these sentences to child offenders.

Customary law

The penalty for any act which is only an offence under customary law is limited to a fine of $100 and / or imprisonment for a maximum of six months.169

Number of children serving life imprisonment

CRIN has been unable to identify any statistics on children sentenced to life imprisonment in Palau or an example of a case in which a child offender was sentenced to life.

Papua New Guinea

Life imprisonment

Life imprisonment appears to be a lawful sentence for offences committed while under the age of 18.

Meaning of life imprisonment

A person serving a sentence of life imprisonment or detention during Her Majesty's pleasure becomes eligible for parole after serving a minimum of 10 years in detention.170

Minimum age of criminal responsibility

No one can be held criminally responsible for an act or omission committed while under the age of seven. A child older than 10 but younger than 14 can only be held criminally responsible if he or she had the capacity to know that he ought not to do the relevant act or make the relevant omission.171

Maximum sentences

Life imprisonment

Offences punishable by death or life imprisonment cannot be heard by the Juvenile Court,172 and so may be subject to much harsher sentences than would be possible under the Juvenile Courts Act. Life imprisonment remains a lawful penalty under the Criminal Code for a number of offences,173 and there is no explicit limitation on its application for offences committed while under the age of 18.

Death penalty

Papua New Guinea has not carried out an execution since 1954,174 but the death penalty may still be a lawful sentence for persons under the age of 18.

The death penalty is authorised for a number of offences under Papua New Guinea’s Criminal Code,175 and in May 2013 the Criminal Code was amended to expand the list of offences for which it is a penalty.176 The State has reported that persons under the age of 18 are not sentenced to death,177 but no provision within the Juvenile Courts Act, Criminal Code or Criminal Justice (Sentences) Act sets an explicit age limit for the death penalty.

Juvenile Court

When the juvenile court sentences a juvenile, 18 months is the maximum period of detention that it can hand down. However, Juvenile Courts cannot hear cases in relation to offences punishable by death or imprisonment for life.178

Number of children serving life imprisonment

CRIN was unable to locate any statistics on the number of people serving life imprisonment for an offence committed while under the age of 18.

Samoa

Life imprisonment

Life imprisonment is a lawful sentence for offences committed while under the age of 18.

Meaning of life imprisonment

A person serving life imprisonment may be considered for parole after serving eight years' imprisonment. Where a person is serving a life sentence that has been commuted from a sentence of death, this period is extended to 10 years.179

Minimum age of criminal responsibility

No person can be held criminally responsible for an act or omission carried out while under the age of 10.180 A child older than 10 but younger than 12 at the time of carrying out an alleged offence can only be found criminally responsible where he or she “knew the act or omission was morally wrong, or that it was contrary to law.”181

Maximum sentences

Life imprisonment

Children aged 17 or older are defined as adults within the Samoan justice system and are therefore subject to the adult justice system and penalties.182 Any person older than 10 but younger than 17 may be tried and sentenced as an adult where the presiding judge in the Youth Court is of the opinion that the offence is of such seriousness and the circumstances of the young person are such that he or she should be treated as an adult.183

Life imprisonment is a lawful sentence for treason; rape; sexual conduct with a child under 12; murder; attempted murder; counselling or attempting to procure murder; conspiracy to murder; counselling, aiding or abetting suicide; and manslaughter.184

Youth Courts

The Young Offenders Act determines the criminal procedure and sentencing for children not tried and sentenced as adults. The Act limits imprisonment to a last resort in circumstances where there is no reasonable alternative185 but does not set a maximum term to which children can be sentenced.

Number of children serving life imprisonment

CRIN has not been able to locate any statistical information on the number of people sentenced to life imprisonment for an offence committed while under the age of 18. CRIN contacted the Ministry of Justice in February 2014 requesting this information but received no response.

Solomon Islands

Life imprisonment

Life imprisonment is a lawful penalty for offences committed while under the age of 18.

Meaning of life imprisonment

People serving life sentences are detained indefinitely. Neither the High Court nor the Court of Appeal has a mandate to recommend parole,186 but the responsible Minister is empowered to release people in detention on licence.187

Minimum age of criminal responsibility

No person under the age of 8 can beheld criminally responsible for an act or omission.188 A child older than 8 but younger that 12 can only be held criminally responsible where “[he or she] had capacity to know that he ought not to do the act or make the omission.”189

However, the Juvenile Offender Act permits criminal justice measures, including deprivation of liberty, to be applied without a lower age limit.190

Maximum sentences

Life imprisonment

The Juvenile Offenders Act limits imprisonment for children to instances in which the child cannot be “suitably dealt with in any other way” specified under the Act.191 However, for “grave crimes”, the court may sentence a child to imprisonment as set out under the Penal Code. The Penal Code permits life imprisonment for a number of offences, and the State confirmed, in its 2002 report to the UN Committee on the Rights of the Child, that life imprisonment was lawful for children from the age of nine and mandatory for the offence of murder.192

For “grave” offences, the relevant Minister, upon sentence of the court, may direct a child to be detained and released on licence at his discretion.193

Number of children serving life imprisonment

CRIN could not locate any statistical information on people sentenced to life imprisonment in Solomon Islands for offences committed while under the age of 18.

Tonga

Life imprisonment

Life imprisonment is a lawful sentence for persons under the age of 18 at the time an offence was committed.

Meaning of life imprisonment

Life imprisonment in Tonga is an indeterminate sentence that could extend for the rest of a persons natural life. When handing down a sentence of life imprisonment the court recommends a minimum period of detention to be served before release on licence is considered.194

Children detained at His Majesty's pleasure are liable to be held under such conditions as the Privy Council direct. Such detention is indeterminate.

Minimum age of criminal responsibility

No person can be held criminally responsible for an act carried out while under the age of seven.195 A child aged seven to 12 can only be held criminally responsible where the Court or jury is of the opinion that he or she has attained “sufficient maturity of understanding to be aware of the nature and consequences of his conduct in regard to the act of which he is accused.”196

Maximum sentences

Life imprisonment

The Criminal Offences Act provides for life imprisonment for a number of offences, ranging from the demolition of buildings to murder and inciting or assisting suicide.197 No limitations are in place with regards to age.

Detention during His Majesty's pleasure

In prohibiting the death penalty for children under the age of 15, the Criminal Offences Act requires that in lieu of the death penalty such children must be sentenced to detention during His Majesty's pleasure.198

Death penalty

The death penalty is a lawful sentence for murder and treason committed while under the age of 18.199 See CRIN's report on inhuman sentencing in Tonga for more information.200

Number of children serving life imprisonment

At the time of writing, one case could be located in which a child was sentenced to life imprisonment. A 15-year-old boy was sentenced to life imprisonment for “unlawful carnal knowledge of a girl under the age of 12” in 1992. This sentence was reduced on appeal to six years' imprisonment, the final three years of which were suspended.201

Tuvalu

Life imprisonment

Life imprisonment is a lawful sentence for persons under the age of 18 at the time they committed an offence.

Meaning of life imprisonment

The Constitution of Tuvalu gives the Head of State the power, in accordance with the advice of the Cabinet, to remit sentences allowing release. In effect, this provision allows the possibility of release for a person serving life imprisonment but, as the High Court of Tuvalu has noted, there is no automatic process whereby cases are brought to the Cabinet and Governor General for attention.202 The Prisons Act now requires an annual report to be made to the minister responsible for prisons on every prisoner who was under 21 years of age at the time they committed an offence for which they were served to life imprisonment or detention during Her Majesty's pleasure.203

Minimum age of criminal responsibility

A child under the age of 10 cannot be criminally responsible for any act or omission204 and a child under 14 cannot be held criminally responsible unless it is proved that he or she knew that at the time “[he or she] ought not to do the act or make the omission”.205

Maximum sentences

Life imprisonment

Imprisonment for life is a lawful penalty for a large number of offences, including murder, piracy, treason, mutiny, genocide, rape, incest, manslaughter, causing grievous harm, embezzlement, robbery, burglar, arson and forgery.206 There is no limitation on these provisions with regards to persons under 18 years. A person liable to life imprisonment may generally be sentenced to a shorter term, though for treason, instigating invasion, piracy and murder, life imprisonment is mandatory.207

Number of children in detention

No statistical information could be found on how many people have been sentenced to life imprisonment for crimes committed while under the age of 18. However, a small number of reported cases identify people who were so sentenced. A 17-year-old was sentenced to life imprisonment for murder in August 1999 for a crime committed while 16.208

Vanuatu

Life imprisonment

Life imprisonment is a lawful sentence for offences committed while under the age of 18.

Meaning of life imprisonment

The Court of Appeal – the highest court in Vanuatu – has acknowledged that the law on life imprisonment is unclear and urged the State to reform criminal policy to clarify what is required of the court in passing sentences of life imprisonment. In practice, when handing down sentences of life imprisonment, the courts have made recommendations as to the minimum term of imprisonment to be served. In cases located during this research, these periods have varied from 12 years to 30 years.209

Minimum age of criminal responsibility

No person can be held criminally responsible for an offence allegedly committed while under the age of 10. A child older than 10 but younger than 14 is presumed incapable of committing a criminal offence unless “[he or she] was able to distinguish between right and wrong and .. did so with respect to the offence with which [he or she] is charged.”210 A male person under the age of 12 is considered incapable of having sexual intercourse, a provision which prevents the prosecution of younger boys for certain sexual offences.211

Maximum sentences

Life imprisonment

Life imprisonment is a lawful sentence for treason, inciting to mutiny, rape, aggravated sexual assault with a child, intentional homicide, killing an unborn child, aiding suicide, piracy and hijacking of aircraft.212 Children under the age of 16 can only be sentenced to imprisonment where “no other method of punishment is appropriate” and the sentencing court is required to give reasons when it so sentences a child,213 but there is no age limit on life imprisonment being applied.

Number of children in detention

No case could be located in which a person had been sentenced to life imprisonment for an offence committed while under the age of 18.

References