In New South Wales, the Criminal Procedure Act 1986 and Crimes (Sentencing Procedure Act) 1999 govern the rules regarding the prosecution and sentencing of indictable offences.

The team at Hamilton Janke lawyers understand that being accused of a serious indictable offence is a daunting time, and are here to provide 24/7 support throughout the legal process. Our lawyers are highly experienced in advising clients charged with serious indictable offences and can provide expert advice and knowledge to help you attain the best possible outcome.


What a Serious Indictable Offence?

A serious indictable offence is an offence that is punishable by prison for life or a term of 5 years imprisonment or more. This encompasses the most severe crimes dealt with by the NSW court system, including murder, sexual assault and drug offences. 


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Types of Offences

The Crimes Act 1900 (NSW) outlines the various criminal offences within the jurisdiction of the NSW courts. The severity of different offences affects both the possible punishments as well as the court processes and procedures.

Strictly Indictable Offences

‘Strictly indictable offences’ are those regarded as most serious under the law. These charges must be dealt with by the district or the supreme court, differing from other indictable offences in which the defence or prosecution has the option to ‘elect’ to have the case heard in these higher courts, rather than in the Local Court. 

Indictable Offences

As defined by the Criminal Procedure Act 1986 (NSW) (CPA), an indictable offence is “an offence that may be prosecuted on indictment”. In other words, indictable offences are more serious matters in which the court can sentence those accused thereof to time in prison. Indictable offences can be categorized as ‘Table 1 offences’, ‘Table 2 offences’ or strictly indictable offences.

Indictable offences are heard in the District or the Supreme Court; however, some indictable offences will also be dealt with summarily in the Local court. If an individual is accused of a Table 1 indictable offence, either the defendant or the prosecution can elect to have the matter heard in a higher court; however, if it is categorised as a Table 2 indictable offence only the prosecution has the right to elect to have the matter dealt with in the higher courts. 

Those indictable offences which can be dealt with summarily in which no election is made remain dealt with by the Local Court. 

Summary Offences

The CPA defines a summary offence as “an offence that is not an indictable offence”. Summary offences are less serious charges and are heard before a magistrate in the local court, therefore capping the maximum sentence to two years imprisonment, but this can be less in some cases. Those offences can include public order offences such as offensive language, minor property offences and possession of small quantities of drugs. 

What Makes a Charge Indictable?

As outlined under section 2 of the Criminal Procedure Act 1986, an indictable offence is one that may be prosecuted on indictment. Indictable charges are more severe offences than summary charges and generally carry a maximum penalty greater than 2-year imprisonment. 

What is Considered a Serious Offence?

The NSW legal system places greater severity on offences that have grievous and severe effects on the victim, state or public property. Serious indictable offences reflect this, as they carry more significant maximum penalties of five years imprisonment or over. 

This covers a range of offences outlined in the Crimes Act 1900 (NSW), including, but not limited to: 

  • Murder
  • Manslaughter
  • Infanticide 
  • Sexual assault without consent 
  • Dangerous driving occasioning death 
  • Kidnapping 
  • Drug offences such as supply or cultivation involving more than a commercial quantity 

Court Process for Serious Indictable Offences

Where Will a Serious Indictable Offence Case Be Heard?

Per the Criminal Procedures Act 1986 (NSW), serious indictable offences are dealt with by the Supreme and District Courts. 

Charges labelled as ‘strictly indictable offences’ cannot be finalised in the local court and must be committed to a higher court, such as the District Court or the Supreme Court, with no option to elect by either the accused or the prosecutor.

What Happens at a Trial?

All indictable offences must first be case managed in the local court before they are committed by a magistrate to either the District or Supreme courts. The magistrate must determine in the local court.

In the local court, the accused can enter a guilty or not guilty plea, after which the matter proceeds to a sentencing hearing or a trial in either the District or Supreme Court, usually before a judge and jury. 

If an individual pleads not guilty, the matter will be committed to either the district or the supreme court for trial. That Trial will then commence on a date given by the District Court, giving both the defence and the prosecution the opportunity to present their cases. Whilst the defendant has the opportunity, they are not obliged to present any evidence as the onus of proof rests on the prosecution. The prosecution must prove the elements of their case beyond a reasonable doubt to the panel of (usually) 12 jurors for the defendant to be found guilty. If the prosecution cannot demonstrate this beyond a reasonable doubt, the defendant will be acquitted.

If the defendant is to be found guilty, the matter will be heard before a judge in a sentencing hearing, where a penalty will be determined based on the severity and circumstance of the case.


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Will there be a Jury?

Most cases that are heard before the District or the Supreme Court are heard by a jury of 12 individuals who must explore the circumstances of the case and determine the guilt or innocence of the accused. 

In some circumstances, such as where the defendant successfully elects to have a trial by a judge alone, without a jury, the case will be heard by a stand-alone judge who will solely determine the outcome of the case. 

Defences for Serious Criminal Charges in NSW

If an individual has been charged with an offence, however, believes they have a reasonable reason for committing this offence, their legal team may be able to raise a defence that can result in a lesser charge or an acquittal. 

Within NSW, there are various criminal defences including, but not limited to: 

  • Automatism;  act was committed by the accused ‘without conscious volition’ (involuntarily)
  • Claim of Right; available to offences related to larceny, where the accused took another’s property where they had genuine belief they were entitled to it  
  • Consent; accused holds a reasonable belief that the victim is consenting to the act committed against them 
  • Duress; defendant was under the threat of death or serious harm to themselves, their family or others
  • Honest and Reliable Mistake of Fact; Accused was convinced on reasonable grounds that their actions were not incriminating 
  • Intoxication; For charges in ‘specific intent offences’ if the accused was intoxicated it can diminish their capacity to formulate intent 
  • Mental Illness; Where the accused was suffered from mental impairment at the time of the alledged offence 
  • Necessity; Operates where circumstances bear upon the accused that induce them to break to law to avoid more dire consequences  
  • Provocation (murder only); Actions of the accused occurred due to preceding events that would cause a reasonable person to lose control
  • Self Defence; Accused acted in a way to defend themselves, another person or property 

Pleading Not Guilty

If you choose to plead not guilty to a serious criminal charge in NSW this highlights that you disagree you committed one, or several elements of the offence with which you have been charged. In these circumstances, your matter will move to trial, during which both the prosecution and the defence has the opportunity to present their case. 

Due to the burden of proof in the NSW legal system, if you plead not guilty, you will not be found guilty unless the prosecution can prove beyond a reasonable doubt that you have committed all of the elements of the offence. 

Pleading Guilty

If you choose to plead guilty to a serious criminal charge in NSW, you agree with and accept responsibility for the offence with which you are charged. This will result in a penalty being imposed upon you by the court, reflecting the nature of the offence and any individual mitigating or aggravating circumstances o the case. 

If you choose to enter a guilty plea, doing this at the earliest possible opportunity will provide the best possible outcome in sentencing. This will mean your case progresses straight to sentencing, with a maximum 25% sentencing discount for an early plea. 

Burden of Proof 

The NSW adversarial court system states that the onus of proof in criminal matters stays with the prosecution. In order for the accused to be found guilty of an offence, the prosecution must prove, beyond a reasonable doubt that the individual is guilty of all elements of the offence with which they are charged. 

Should You Plead Guilty or Not Guilty?

When determining your plea in serious criminal proceedings, it is integral that you seek expert legal advice to direct you on the best decision for your circumstance. The team at Hamilton Janke Lawyers are highly experienced at directing defendants in serious criminal matters and assisting you in entering your plea to provide you with the best possible outcome. 

If you choose to plead guilty to an offence, for any reason other than that you agree and take responsibility for all elements with which you are charged, it is very difficult to reverse this decision. 

Key Takeaways

Penalties for Serious Indictable Offences

Serious indictable offences carry a maximum penalty of 5 years imprisonment or more, dependent on the severity of the offence. The highest sentence for an indictable offence in NSW is life imprisonment. 

Serious indictable offences can also be sentenced using differing penalties including, but not limited to; 

  • Imprisonment 
  • Section 10 dismissal 
  • Fine
  • Conditional Release Order 
  • Community Correction Order 
  • Intensive Correction Order (ICO)

If you are being charged with a serious indictable offence in NSW, it is vital that you seek legal advice and legal representation. An experienced criminal defence lawyer will be able to advise you on how to proceed and assist you through every step of the process. Contact our expert Criminal Defence Lawyers now.

Written By
Picture of James Janke
James Janke

James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia