Within the NSW legal system, two primary types of criminal offences are outlined under the Crimes Act 1900 (NSW): Summary Offences and Indictable Offences. Whether an offence committed is an indictable or summary offence refers to the court process in which the matter will take, as well as differing severity in sentence options. Indictable offences are more serious offences, which in turn can bear grave punishments. Serious Indictable offences are those which may carry a prison term greater than 5 years and are generally finalised in the higher courts.
What is a summary offence?
The Criminal Procedure Act 1986 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 for a single offence, but this can be less in some cases.
Examples of summary offences include:
- Minor drunk driving offences
- Offensive language
- Minor drug possession
- Minor speeding offences
- Common assault offences
- Minor traffic offences
- Minor theft offences
What happens if I am charged with a summary offence?
If an individual is charged with a summary offence, they are notified by a Court Attendance Notice to appear in the local court, where their matter will be heard before a local court magistrate. In court, the defence can present their defence and any relevant evidence to the court, whilst the prosecution must prove beyond a reasonable doubt that the accused committed the elements of the offence. Following this, the magistrate must determine the guilt of the accused based on the evidence presented; however, they should not be found guilty if there is any reasonable doubt that they did not commit the offence.
If you receive a Court Attendance Notice and find yourself accused of committing a summary offence, it is highly recommended to contact an experienced criminal lawyer such as the team at Hamilton Janke Lawyers. It is necessary to receive expert legal advice and guidance, and we assure you that with the assistance of our legal team, we will be able to help you in receiving the most favourable outcome.
Court process for summary offences
Once an individual receives a Court Attendance Notice to appear in the local court, they will be given a court date on which their matter will be mentioned. If an individual fails to present to the court, the court will either deal with the matter in their absence or issue a warrant for their arrest.
Upon attending court for a summary offence, the accused will be presented with an opportunity to either plead guilty, plead not guilty, or adjourn the matter to seek proper legal advice. If an individual chooses to plead guilty, their matter can progress straight to sentencing, where a magistrate will determine an appropriate punishment. If an individual wishes to contest the charges against them and enter a not guilty plea, they will be asked to attend court on one or two more occasions for a contested hearing. It is at the hearing where the prosecution and the defence can present relevant evidence before the magistrate determines whether the Accused is guilty or not guilty.
What court will I appear in?
Under the Summary Offences Act 1988, all individuals accused of a summary offence over 18 years of age must be dealt with in the Local Court, whilst all minors (under 18) must be dealt with in the Children’s Court.
Penalties
Whilst summary offences are deemed less serious within the NSW legal system, they can still result in both a term of imprisonment and a criminal conviction for the accused. The maximum penalty for summary offences is a term of 2 years imprisonment; however, the judge has the discretion to sentence individuals with any of the following penalties:
- Imprisonment
- Section 10 dismissal
- Fine
- Community Correction Order
- Section 9 Good Behaviour Bond
What is an indictable offence?
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 imprison those accused for over two years. 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 can also be dealt with summarily in the Local court. If an individual is accused of 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.
What makes a charge indictable?
As outlined under section 2 of the Criminal Procedure Act 1986, an indictable offence may be prosecuted on indictment. Indictable charges are more severe offences than summary charges and generally carry a maximum penalty greater than 2 years imprisonment.
As a general rule, the NSW legal system places greater severity on violent offences and/or has grievous and severe effects on the victim, state or public property. This is reflected through the more complex court process and the possibility of receiving a more significant punishment in response to these offences.
Strictly Indictable Offences
‘Strictly indictable offences’ are indictable offences that are regarded as the most serious under the law. These charges must be finalised in the district or supreme court, differing from other indictable offences in which the defence or prosecution can ‘elect’ to hear the case in these higher courts rather than in the Local Court.
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
What happens if I am charged with an indictable offence?
If an individual is charged with an indictable offence, they will either be arrested and brought before or required to appear in the Local Court for a first mention. The court process and trial procedures for the matter depend on whether it is to be heard in the Local Court or a higher court (District or Supreme Court). If an individual is charged with a ‘strictly indictable offence’ or their matter has been elected to be heard in a higher court, their case must be finalised in either the district court or the supreme court. All other indictable offences will be dealt with summarily in the Local Court.
If you face indictable charges, it is integral that you contact an experienced criminal defence lawyer for expert advice and guidance. This provides you with the greatest opportunity of ensuring the best possible outcome by presenting a strong defence or arguing for a lesser sentence. Contact the team at Hamilton Janke Lawyers today to receive specialised advice and irreplaceable legal knowledge that will be fundamental to your success in court.
Court process for indictable offences
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. In the local court, the matter will go through a process known as the Early Appropriate Guilty Plea (“EAGP”) Process which includes charge certification and case conferencing to determine which charges will progress to trial. This is relevant for hearings of both ‘strictly indictable offences’ or offences that have been elected to be dealt with ‘on indictment’. All other indictable offences will be dealt with summarily 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, allowing both the defence and the prosecution 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. The defendant will be acquitted if the prosecution cannot demonstrate this beyond a reasonable doubt.
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.
Can indictable offences be dealt with in the local court?
If an individual is charged with an indictable offence that isn’t strictly indictable and hasn’t been elected to be dealt with on indictment, the matter will be handled in the local court. This means their case is to be heard before a magistrate, and the maximum penalty for which they are liable is two years imprisonment or the legislated maximum penalty for the crime.
Will I be heard before a jury?
Most offences that are dealt with on indictment will be tried before a panel of 12 jurors who are tasked with determining the guilt or innocence of the accused. If the jury finds the accused ‘guilty’ of the offence, they are to be sentenced by a judge who will determine an appropriate punishment based on the circumstances of the case.
Penalties for Indictable Offences
Indictable offences by nature, carry a maximum penalty of over 2 years imprisonment, whereas serious indictable offences carry a maximum penalty of over 5 years imprisonment or more, dependent on the severity of the offence. The highest sentence for an indictable offence in NSW is life imprisonment.
In accordance with the Crimes (Sentencing Procedure) Act 1999, those accused of an indictable offence may also be sentenced to an alternate punishment, including, but not limited to:
- Imprisonment
- Section 10 dismissal
- Fine
- Conditional Release Order
- Community Correction Order
- Intensive Correction Order (ICO)
Penalties for minor indictable offences?
Minor indictable offences are those dealt with summarily before a magistrate in the local court. The maximum penalty for these offences is limited to the local court’s jurisdiction, which has the power to sentence a maximum term of 2 years imprisonment. However, if the maximum penalty outlined for the offence in the Crimes Act 1900 (NSW) is less than the 2-year sentence, the magistrate cannot sentence the offender to any greater than the specified term.
Key Takeaways
- Two-up is a traditional Australian game, legally played on ANZAC Day, Victory in the Pacific Day, and Remembrance Day afternoon.
- It's generally illegal due to its classification as unregulated gambling, with exceptions under the Gambling (Two-up) Act 1998.
- Minors are prohibited from participating in or betting on two-up games, with significant penalties for violations.
- Lawful two-up games require no entry fee or payment beyond betting and can be played in registered clubs for charity benefits.
- There's a legal defense for participants in unlawful two-up games if they were unaware of the game's illegality.
What do I do if I am charged with a summary or indictable offence?
It can be a very confronting and unsettling time if you are charged with any criminal offence, summary or indictable. The team at Hamilton Janke Lawyers understand the difficulty of receiving a criminal charge and will competently guide you through the complex legal processes. Contacting our expert team of criminal lawyers will be highly beneficial, as their vast experience and irreplaceable legal advice will ensure you receive the best possible outcome.
Written By
Drew Hamilton
Drew Hamilton is founding partner at Hamilton Janke Lawyers. Admitted to the Supreme Court of New South Wales as a Solicitor and also listed on the High Court of Australia register.
