Indictable offences and penalties in Western Australia (WA)

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There are two types of offences in Western Australia. Indictable offences and summary offences. Indictable offences are termed crimes, whereas summary offences are termed simple offences. There exists a third category of offences in Western Australia, which is known as an “either way offence”. These are dealt with in the two categories depending on the circumstances.

Indictable offences are a serious criminal offence and will show up as a disclosable court outcome (DCO) on an individual's police check.

What is an Indictable offence?

Indictable offences are serious criminal offences. They are such offences that are considered a threat to society at large. Serious indictable offences have serious consequences and the relevant courts hear these on preference.

In indictable offences, the party suing and perusing the case is the state itself, presented by a Public Prosecutor - Office of the Director of Public Prosecutions in WA. The other party is the accused, whoever the accused is.

Which Court Handles Indictable offences?

The indictable offences are the most severe crimes, and they have severe penalties. The cases involving an indictable offence start in the Magistrates court. They then move ahead to either the Supreme Court of Western Australia or the District Courts of Western Australia.

These cases are heard in the higher courts because under section 3(2) of the Criminal Code Act Compilation Act 1913 (WA), the indictable offence cases are only possible on indictment. In simple words, the accused has the right that the judge or jury will hear their matter. So an Indictable hearing generally does not take place in lower courts like a Magistrates Court unless if permitted in the legislation (for example, if the offence attracts imprisonment time of less than two years).

The limitation period in Indictment offences

As per section 3(6) of the Criminal Code Act Compilation Act 1913, indictment cases prosecution can be commenced at any time, unless and until provided by a written amendment. It means, in simple words, that there is no limitation period on the commencement of an indictment offence trial.

Offences included in indictment offences

Western Australian legislation defines the indictment offences as the state's criminal offences. The following acts describe it;

• Criminal Code Act Compilation Act 1913 (WA)
• Misuse of Drugs Act 1981 (WA)
• Firearms Act 1973 (WA)
• Restraining Orders Act 1997 (WA)

The above Acts deal with the indictment offences in Western Australia. Different sections in the above acts deal with varying violations of a charge. Sections 552 to 555 of the Criminal Code Act Compilation 1913 deals with indictment offences.

Attempts to commit indictable offences - Section 555 of the Criminal Code Act Compilation 1913 (WA)

A person is guilty of an indictable offence if he attempts to commit an indictable crime.

Incitement to commit the indictable offence - Section 553 of the Criminal Code Act Compilation 1913 (WA)

If a person committing motivates another person to commit the crime, they are then guilty of an indictable offence.

Major Indictable offences

The following are major indictable offences commonly recognised by the law and in most cases cannot be treated as a summary (simple) offence .

• Robbery
• Serious assaults
• Sexual assaults
• Serious fraud offences
• Commercial theft
• Burglary
• Drug offences
• Criminal damage

Penalty for Indictable offences

The penalty for indictment offences varies according to the availability of proof, evidence, and the crime's gravity. However, according to the Criminal Code Act Compilation 1913, the maximum penalty for the offender is life imprisonment.

Process for indictable offences

Committal Hearings

The Criminal Procedure Act 2004 (WA) explains the criminal and court procedures for dealing with an indictable offence.

Since there must be a committal/disclosure hearing before the court, all the indictable offences are heard and dealt with in the Magistrates courts of Western Australia before being transferred to a court of higher jurisdiction (if required). At this stage, before taking the accused person's plea, the court needs to be satisfied with the full prosecution disclosure of the case.

If the accused pleads guilty

If the accused pleads guilty, the case shifts to a higher court for Sentence mention hearing as per s 41(3) of the Criminal Procedure Act 2004 (WA). At the sentence mentioned hearing, if both the accused and the prosecution are ready to precede the sentencing, the court will give a date for the Sentencing Hearing.

If the accused pleads not-guilty

If the accused pleads not-guilty, the matter shifts to a court of higher jurisdiction for a Direction Hearing; s 41(4) of the Criminal Procedure Act 2004 (WA). Indictable offences that are not punishable by life imprisonment shift to District Courts of Western Australia. Violations that are punishable by life imprisonment, are transferred to the Supreme Court of Western Australia.

Jude or the judge and jury

Unless an order is released under Section 118 of the Criminal Procedure Act 2004 (WA), all the indictable offences are tried by jury. But after implementation of section 118, the trial will be heard by a judge alone.

Section 118 is made for the purpose that the judge will decide the case alone. The court implement section 118 if,

• An application is made by the accused, and the court is satisfied that the matter is in the interest of justice.
• The prosecution makes the application, and the accused agrees to the application. Moreover, the court is also satisfied that it is in the interests of justice.

When a trial is an unreasonable burden on the jury due to complexity, the court makes the order for a judge alone.

Under section 123 of the Criminal Code (WA), if the case "threatens or corrupts a juror," the order for a lone judge is made.

However, if the court thinks that the case needs to be heard by a jury to assist with standards or factual issues, then they can dismiss the application for a judge alone.

Jury Trials

Jury trials are heard based on the principles that the jury determines the questions of facts, and the judge determines the questions of law. The jury determines the points from the shreds of evidence presented by the accused and the prosecution. After selecting the facts, the jury decides whether the accused is guilty or not, and then the court verdict is delivered.

Either-way offences

Some of the offences are known as ‘either-way offences’. They are either dealt with within the summary offences or indictment offences category. To fit within a class depends on the case facts and circumstances given. They are sorted out in the Magistrates Courts summarily or in District courts as indictment offences depending on the nature of the offence.

Do indictable offences committed show up on a nationally coordinated criminal history check?

Indictable offences are classified by the legislation to be the most serious types of criminal offences. The offence will be disclosed on a nationally coordinated criminal history check result.

Individuals can obtain their Nationally Coordinated Criminal History Check online via the Australian National Character Check - ANCC® website.

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